Illegal immigrant can claim discrimination

As a general principle, the courts will not enforce illegal contracts.

However, in Hounga v Allen 2014 the Supreme Court held that illegal immigrants are entitled to bring discrimination claims against their employers. The Court determined that a young Nigerian woman who was brought to the UK to work illegally when she was just 14 is entitled to protection from discrimination under the Equality Act 2010. The connection between illegal contracts and the discriminatory treatment was insufficiently close to bar her claim. Furthermore, the Court found that public policy against human trafficking outweighed any public policy consideration in support of applying the defence of illegality.

The Claimant came to the UK at the age of 14 to work as an au pair for the Allen’s in January 2007. Under arrangements brokered by Mrs Allen’s extended family in Nigeria, but with the Claimant’s knowledge, she obtained a visitor’s visa and entered the UK using false papers. The visa did not give her permission to work, nor the right to remain in the UK beyond July 2007. While working for the Allen’s, she suffered serious physical abuse. The Claimant was eventually dismissed and evicted from the family home in July 2008.

She brought a range of employment tribunal claims, including unfair dismissal and race discrimination. The tribunal dismissed most of the Claimant’s claims on on the basis that her contract was illegal, but upheld her race discrimination claim and awarded her compensation for injury to feelings. The Employment Appeal Tribunal upheld the tribunal’s decision but it was overturned on appeal by the Court of Appeal, which held that the illegal contract of employment formed a material part of the Claimant’s discrimination complaint, and that to uphold it would be to condone the illegality.

The Supreme Court restored the employment tribunal’s decision and held that while the defence of illegality prevented the Claimant from enforcing an illegal contract of employment, or claiming unfair dismissal, different considerations applied in respect of claims of unlawful discrimination. In such cases, there must be a sufficiently close connection between the illegality and the facts giving rise to the claim before any question arises of refusing relief on the basis of illegality. The decision that the Claimant’s complaint was ‘obviously’ inextricably linked to her willing participation in entering into an illegal contract was overturned.

The majority of the Judges concluded that the Claimant should be allowed to pursue her claim of discrimination as a matter of public policy on the basis that it was ‘hard to resist’ the conclusion that she was a victim of trafficking for forced labour. Public policy against trafficking outweighed any public policy concern to preserve the integrity of the legal system. This was particularly so in a case in which the tribunal’s award of compensation did not allow the Claimant to profit from her wrongful conduct or to evade a penalty, and nor would it encourage others in similar situations to enter into illegal contracts.

The appeal was successful and the case will be sent back to an employment tribunal for a new hearing.

If you require advice regarding unlawful discrimination at work, please do not hesitate to contact us on 0207 956 8699 or email