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Illegal workers and discrimination
[ch 7: pages 231-232]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 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 worker’s own unlawful conduct.
Discrimination will not be inextricably linked to illegality just because someone is working illegally, for example, without a work permit. Instead, all the surrounding facts must be considered. 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 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 participants in illegal activity from the employment tribunal. A different 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
In a case such as this, a claim for compensation could now be brought under the Modern Slavery Act 2015, but only if a criminal conviction for the offence of slavery, servitude or forced labour is secured.
A court is likely to rule that discrimination is inextricably linked to illegality where a worker actively misleads their employer, by deliberately lying about their immigration status (Vakante v Governing Body of Addey and Stanhope School [2005] ICR 23).