An employee working under an illegal contract of employment can be prevented from relying on certain statutory and contractual employment rights, such as pursuing an unfair dismissal or breach of contract claim. The question in the case of Hounga v Allen was whether they are also barred from bringing a discrimination claim.

In this case, Miss Hounga was employed as a live-in au-pair and continued working in the UK 18 months after her visa (which was obtained falsely) had expired. Throughout her employment Miss Hounga was subjected to violent and threatening behaviour by her employers. On the day her employment ended Miss Hounga alleges that she was smacked and thrown out of the house, covered in water and forced to sleep in the garden in her wet clothes. She brought claims of unfair dismissal and race discrimination.

The Employment Tribunal and the Employment Appeal Tribunal did not permit Miss Hounga’s unfair dismissal or discrimination claims to proceed, on the basis that her employment in the UK was illegal. The Supreme Court was tasked with deciding whether the discrimination claim could proceed.

In considering whether a discrimination claim arising out of an illegal contract of employment can be pursued the Supreme Court decided that the discriminatory conduct was not caused by the illegal employment in any way but that the illegal contract of employment merely providing the setting for it. Further, in light of the public policy against human trafficking and the right not to be held in slavery or to perform compulsory labour, there was a public policy reason to allow the claimant’s case to proceed.

Miss Hounga was therefore permitted to continue with her discrimination claim.

Although we do not envisage employers reading this bulletin would ever be party to illegal contracts of employment or condone discriminatory treatment, it is important to be aware that employees who arrive in the UK illegally and are subject to less favourable treatment can be permitted to bring discrimination claims.