Hounga v Allen and ors  UKSC 47
The defence of illegality does not necessarily defeat a claim for discrimination.
Aged 14, Mrs Allen helped Miss Hounga to illegally enter the UK from Nigeria. Mrs Allen promised Miss Hounga £50 per month to work as a housekeeper / au pair and the opportunity to go to school. Neither promise materialised. Instead, Miss Hounga was subjected to a campaign of physical and verbal abuse and was eventually thrown out of Mrs Allen’s house. Rescued by Social Services, Miss Hounga commenced claims against Mrs Allen for breach of contract, unpaid wages and race discrimination.
The employment tribunal concluded that the illegality defence precluded all Miss Hounga’s claims except for race discrimination. The Employment Appeal Tribunal agreed, but the Court of Appeal did not. It held that because contractual illegality was so central to Miss Hounga’s claim, to uphold the discrimination claim would be to condone the illegality.
The Supreme Court disagreed and allowed Miss Hounga’s appeal in relation to her claim for discrimination committed in the course of her dismissal. It remitted her claim for pre-dismissal harassment to the tribunal.
The court’s view was that there was no ‘inextricable link’ between Miss Hounga’s illegal conduct and the actions complained of; the illegal contract was no more than the context of the abuse.
The court (with Lords Hughes and Carnwath dissenting) also doubted whether the ‘inextricable link’ test was applicable to Miss Hounga’s case. The court explained that the illegality defence is based on a public policy concern to preserve the integrity of the legal system. However, in the current case there was also the public policy concern, which runs counter to the defence, to fight human trafficking. The court’s view was that the defence should give way to allow the public policy aim, to which its application is an affront, to be pursued.
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