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Illegal workers and discrimination
[ch 6: pages 154-155]An employer cannot avoid a discrimination claim just by claiming the contract is illegal. For example, in Leighton v Michael [1996] IRLR 67, an employee was allowed to bring a sex discrimination claim even though she turned a blind eye to her employer’s failure to deduct tax and national insurance.
A worker can, however, be barred from bringing a discrimination claim under the EA 10 where the discrimination claim is “inextricably linked” to the claimant’s own unlawful conduct.
Discrimination will not be inextricably linked to illegality just because someone is working illegally, for example without a work permit. This was confirmed by the Supreme Court in the following important ruling:
The claimant, Ms Hounga, was aged around 14 when she was brought to the UK illegally to work for her employer. She suffered appalling abuse before eventually being dismissed and thrown out onto the street. The Supreme Court said that Hounga’s unlawful immigration status merely provided the context that enabled her employer to perpetrate acts of discrimination and harassment. Her illegal status was not “inextricably linked” to the unlawful discrimination and harassment.
In any event, said the Supreme Court, the defence of illegality is based on a public policy of barring claimants who have participated in illegal activity from the employment tribunal. Another public policy — against human trafficking and in favour of protecting its victims — is more important. Hounga was allowed to bring her claims of discrimination.
Hounga v Allen [2014] UKSC 47
A court is likely to rule that discrimination is inextricably linked to illegality where a worker actively misleads their own employer by falsely pretending to have the right to work in the UK (Vakante v Governing Body of Addey and Stanhope School [2005] ICR 23).