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Can illegal workers bring claims for harassment under the Equality Act 2010?
Illegal workers — especially domestic workers in the employer’s home — are among the most vulnerable workers in the UK (see Chapter 1). Even so, it seems that these workers are unlikely to be protected from workplace harassment by the Equality Act 2010. This reflects a policy decision to deny access to the employment tribunal where acts of harassment or discrimination are “inextricably linked” to illegality. Tribunals rarely take account of the lack of genuine choice on the part of most such claimants, as the following case illustrates:
Ms Hounga, a young, illiterate Nigerian citizen was encouraged by her employers to travel to work in the UK illegally from Nigeria as their au pair, with the promise of schooling and wages of £50 a month. The tribunal guessed she was around 14 years-old when she entered the UK. The tribunal had no doubt that the plan — to enter the UK using a passport and visa under someone else’s name and with a false story — was “master-minded” by the employer’s family. Once in the UK, Ms Hounga was paid nothing and suffered serious abuse at the hands of her employer, who threatened her with the risk of imprisonment because of her illegal status.
When eventually she was dismissed and thrown out, she did not even know her employer’s address. Even in these circumstances, the Court of Appeal ruled that she was not to be allowed to bring a claim for discrimination, concluding that she was a willing participant in the decision to enter the UK illegally and that as a result, her treatment at the hands of her employer was inextricably bound up with the illegal contract of employment.
Hounga v Adenike Allen [2012] EWCA Civ 609