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.Tick mark and Cross mark icons on a simple scales.

Get your FREE download

We combine the service quality of a law firm with the certainty of fixed-fee services to provide expert, solutions-focused Employment LawHR and Health & Safety support tailored to employers.

Call us on 0345 226 8393.

Get your FREE download

We combine the service quality of a law firm with the certainty of fixed-fee services to provide expert, solutions-focused Employment LawHR and Health & Safety support tailored to employers.

Call us on 0345 226 8393.

Find what you were looking for?

Our FREE resources library contains over 200 searchable blogs, guides and templates focused around Employment Law and Health & Safety issues that employers face on a day-to-day basis.

Get your FREE consultation

Submit your details and one of our team will be in touch.

Is Your Business Based in Scotland?

Go straight to our free sector-specific Risk Assessment Templates for Scottish organisations…
 
Click to explore what’s available.
Hi, how can we help?
Click the button below to chat to an expert.

Before you go…

We can help with that HR problem or health and safety query. Leave your details below and our team will call you back.

Register your interest

Submit your details and one of our team will be in touch.

Request a Callback

Request a Callback

Submit your details and one of our team will be in touch.

Need some help?

Call our team now on:

01244 668 182

Request a callback

Submit your details and one of our team will be in touch.

Download your FREE guide

Submit your details below.

Get your FREE consultation

Submit your details and one of our team will be in touch.