Illegality and discrimination 





An employer cannot avoid a discrimination claim by claiming that the contract is illegal. For example, in Leighton v Michael [1996] IRLR 67, an employee could bring a sex discrimination claim even though she turned a blind eye to her employer’s failure to deduct tax and National Insurance. However, a worker can be barred from bringing a discrimination claim where that claim is “inextricably linked” to the worker’s own unlawful conduct. 





Discrimination is not inextricably linked to illegality just because someone is working illegally, for example without a work permit. Instead, all the surrounding facts must be considered, especially the power imbalance created by the illegal status which exposed the worker to the threat of discrimination and harassment. 



In discrimination claims involving the exploitation of undocumented workers, courts and tribunals must take into account the public policy against human trafficking and in favour of protecting slavery victims, following a landmark Supreme Court ruling, Hounga v Allen [2014] UKSC 47. There may also be a right to compensation under the Modern Slavery Act 2015, but only if there is a criminal conviction for the offence of slavery, servitude or forced labour (see Chapter 1: Modern Slavery).




A worker who actively misleads their employer (for example, by deliberately lying about their immigration status) is unlikely to be allowed to bring a tribunal claim for discrimination (Vakante v Governing Body of Addey and Stanhope School [2005] ICR 23).