Domestic Worker's Discrimination Claim Not Defeated by Illegality of Employment Contract, Says UK Supreme Court

London, 12 August 2014
On 30 July 2014, the UK Supreme Court issued its judgment in Hounga v Allen and another, upholding the discrimination claim of a domestic worker who had been working under an illegal contract. In a decision which ensures important legal redress for exploited workers, the Supreme Court found that the illegality of the contract was not sufficiently linked to the act of discrimination to defeat the claim. 

The majority of the Court also found that there were strong public policy reasons in cases of human trafficking, such as the present one, to prevent the illegality of the contract from defeating a discrimination claim. The case was brought by Miss Hounga, a Nigerian national residing in England. In 2007, at the age of 14, Miss Hounga had come to the UK to work in Mrs Allen’s house after Mrs Allen’s family offered to enrol her in education and pay her £50 a week. Miss Hounga knowingly used false identification documents, procured for her by Mrs Allen’s family, to gain entry to the UK on a visitor’s visa. She proceeded to work illegally for Mrs Allen for 18 months without being enrolled in education or paid the money she had been promised. During this time she was subjected to serious physical abuse and threats which culminated, in July 2008, in Mrs Allen violently evicting her from the house and terminating her employment. 
The Supreme Court considered whether Miss Hounga could, as she submitted, claim discrimination despite the fact that she had been working illegally with irregular immigration status. Mrs Allen argued that the legal defence of illegality defeated Miss Hounga’s discrimination claim.
The Supreme Court unanimously held that Miss Hounga’s discrimination claim could succeed. The link between the illegality of Miss Hounga’s employment contract and the discriminatory treatment was not sufficiently close for the defence of illegality to bar Miss Hounga’s claim.  Three of the five judges (Lord Wilson, Lady Hale and Lord Kerr) considered that the key question was one of public policy.  The public policy of ensuring the integrity of the legal system was not in jeopardy in the present case. Miss Hounga was not going to profit from her illegal conduct nor evade penalty as a result of her claim and it would be “fanciful” to assume that an award would encourage others in similar situation to enter illegal employment contracts. Conversely, applying the defence of illegality could compromise the integrity of the legal system by appearing to encourage employers to enter into illegal contracts and even to believe that they could discriminate with impunity.
Further, upholding Mrs Allen’s defence of illegality would run counter to the current public policy against trafficking and in favour of the protection of its victims. After considering international and European law on human trafficking, it was “hard to resist” a conclusion that Miss Hounga was a victim of trafficking. Allowing her claim to be defeated by the defence of illegality may even be in breach of the UK’s obligations under Article 15(3) of the Council of Europe Convention on Action against Trafficking in Human Beings.
ERT welcomes the judgment of the UK Supreme Court and the fact that it rightly ensures access to legal redress for discrimination for some of the most vulnerable workers in the country. In particular, ERT welcomes the considered and powerful reasoning and conclusions delivered by the majority in relation to the application of international and European law on human trafficking to the facts of the case.
Responding to the judgment, ERT Chair, Sue Ashtiany, said:
It is heartening that the UK's top court has understood the importance of real protection for people who are among the most vulnerable. This case really shows the importance of basic decency and also the application of international standards of law that are there to protect vulnerable people, especially very young ones who are effectively imported and exploited as domestic servants.
To read ERT's case summary, click here.
The read the Supreme Court's judgment, click here.