• Robert Spicer

Illegality and Workplace Harassment: Supreme Court Decision In Hounga v Allen And Others

The Supreme Court has given judgment in the case of Hounga v Allen and others [2014] UKSC 47. The essence of the Court’s decision is that the defence of illegality does not necessarily defeat a discrimination claim.

The facts, in outline, were that H, a Nigerian national, started work as an au pair for a family in Britain in 2007. She obtained a six-month visitor’s visa by giving false information. She was subjected to a campaign of physical and verbal abuse. In 2008 she was dismissed and brought a number of claims, including race discrimination, in the employment tribunal. The tribunal rejected all the claims except for race discrimination. It stated that she had been ill-treated by her employer who would not have dismissed her if she had been a British-based person.

The Court of Appeal ruled that the claim failed. H was relying directly on the fact that she had been working illegally in Britain. If the Court were to allow her to rely upon her own illegal actions, it would be condoning her illegality. That was something which the Court would not do.

The Supreme Court reversed this decision.

It stated 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 illegality defence should give way to allow the public policy aim to be pursued.

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