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Supreme Court unanimously allows appellant’s appeal against the CA’s findings regarding discrimination claims

Hounga v Allen & Anor [2014] UKSC 47

Related Member(s):
Thomas Linden QC, Laura Prince
Related Practice Area(s):
Discrimination and Equality, Employment Law, Immigration, Asylum and Free Movement, Human Rights
Court:

The appellant, a young woman from Nigeria, came to the UK under arrangements made by the respondent’s family. She gained entry under a false identity (of which she was aware) and was given a 6-month visitor’s visa. In reality, she remained for the following 18 months in the respondents’ home, working as a domestic worker without receiving payment. During this time the appellant was subjected to physical abuse and threats. The threats were to the effect that if she left the house, she would be imprisoned by the authorities. After 18 months, the respondents forcibly evicted the appellant. The appellant brought an action for race discrimination in the ET, arguing that due to her nationality she was treated less favourably than others may have been.

The ET upheld her claim of unlawful discrimination in respect of her dismissal but made no finding in respect of the other matters she had complained of. The CA found that the illegality of the employment meant the appellant’s discrimination claims could not succeed because they were inextricably linked to the illegality of the contract. This provided a complete defence to the respondents.

The Supreme Court unanimously allowed the appellant’s appeal against the CA’s findings regarding her discrimination claims.  They found that the appellant’s claims in relation to racial harassment prior to her dismissal should also be remitted to the ET. The majority reasoning referred to the need to uphold the public policy issues at play in preventing trafficking. However, the minority reasoning also noted that the appellant did not appear to have been compelled to commit the immigration offences which she committed. On the facts of this case, the appellant’s claim was not inextricably linked with her own illegality and therefore, the defence of illegality did not operate so as to bar her discrimination claims.

Tom Linden QC and Laura Prince were involved in this case.