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Hounga v Allen and Another [2014] UKSC 47

Judgment handed down: 30 July 2014

Facts of the Case

Miss Hounga is of Nigerian nationality, now residing in England. In January 2007, when Miss Hounga was approximately 14 years of age, she came from Nigeria to the UK under a false identity in order to be granted a visitor’s visa for six months. Mrs Allen, who is of joint Nigerian and British nationality, resides in England and for the 18 months following Miss Hounga’s arrival into the UK, allowed her to stay within her home with her husband and children. Although having no right to work within the UK due to only holding a visitor’s visa, and after July 2007 having no right to remain within the UK, Mrs Allen employed her, unpaid, to look after her children in the home. Both parties knew that the arrangements for Miss Hounga to be allowed access to the UK were illegal. At her home, Mrs Allen inflicted serious physical abuse on Miss Hounga and told her that if she left the home, she would be imprisoned because her presence in the UK was illegal.

In July 2008, Mrs Allen forcibly evicted Miss Hounga from her home and thereby dismissed her from her employment.

Case History

Miss Hounga issued a variety of claims and complaints against Mrs Allen in the Employment Tribunal. One claim which the tribunal upheld was her complaint of unlawful discrimination due to Mrs Allens dismissal being based on Miss Hounga’s Nigerian nationality and resulting unlawful immigration status, but only the part of the complaint which related to her dismissal. The Employment Tribunal held that Mrs Allen breached s. 4(2)(c) of the Race Relations Act 1976 as it then was. The tribunal ordered Mrs Allen to pay Miss Hounga compensation for the resultant injury to her feelings to the sum of £6,187.

The Employment Appeal Tribunal dismissed Mrs Allen’s cross-appeal against the order. The Court of Appeal however, upheld a further cross-appeal brought by Mrs Allen against the Employment Appeal Tribunals decision. The Court of Appeal upheld Mrs Allen’s defence of illegality and overturned the decision of the Employment Tribunal. The court found that the illegality of the contract of employment formed a material part of Miss Hounga’s complaint and that to uphold it would be to condone the illegality. The Court of Appeal stated that it was not open to Miss Hounga to complain about dismissal, from an employment which she had agreed to take and which, to her knowledge, was illegal.

The Issue on Appeal

In what circumstances should the defence of illegality defeat a complaint by an employee that an employer has discriminated against him by dismissing him contrary to section 4(2)(c) of the Race

Relations Act 1976? The 1976 Act was repealed by section 211(2) of, and Schedule 27 to, the Equality Act 2010 and with effect from 1 October 2010 the provision in section 4(2)(c) has been subsumed in section 39(2)(c) of the 2010 Act.

Supreme Court’s decision

The Supreme Court unanimously allowed Miss Hounga’s appeal and restored the order for compensation. All 5 judges of the court (Lady Hale, Lord Kerr, Lord Wilson, Lord Carnwath and Lord Hughes) agree that there was an insufficiently close connection between the illegality of Miss Hounga’s entry into the contract of employment and the acts by which Mrs Allen unlawfully dismissed her. That would have been the basis on which Lord Hughes and Lord Carnwath would have rejected Mrs Allen’s defence of illegality.

Lady Hale, Lord Kerr and Lord Wilson however, rejected it on a different basis. They held that the defence of illegality rests upon an aspect of public policy, namely that the integrity of the legal system should be preserved, however in this case, another important aspect of currently public policy is in play namely against the international trafficking of vulnerable people and in favour of protecting them. These judges held that it would be an affront to current public policy against trafficking to allow Mrs Allen to evade liability to Miss Hounga by reference to the illegality of the contract of employment entered into between them.

Full judgment found here:

Press summary found here:

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