Illegality

11 Sep 2014

In a notable act of compassion on 30 July 2014, the Supreme Court ruled that an employer's defence of illegality (to a claim of racial discrimination on dismissal from unlawful employment) was trumped by a public policy point that this is an affront to justice (Hounga v Allen). The facts of the case are bleak but speak for themselves.

An Employment Tribunal found that, in 2007, Mrs A was complicit, with her mother and brother, in an illegal arrangement which brought Miss H from Lagos to the UK on a 6 month visitor's visa. The deal was that Mrs A would employ Miss H as a home help, send her to school, provide her with board and lodging and wages of £50 a month.

Miss H was aged about 14 at the time. She was illiterate. She was uneducated, had a learning disability and long term emotional difficulties.

An Employment Tribunal found that in the course of the (unlawful) employment, Mrs A inflicted serious physical abuse on Miss H and caused her extreme concern by telling her that if she left the house and was found by the police she would be sent to prison because she was in this country illegally. Mrs A bought Miss H some earrings and clothes and provided board and lodging but did not enrol her in school or pay her.

The Tribunal went on to find that on 17 July 2008:

a)         Mrs A was angry to discover that her children had not eaten the supper which she directed Miss H to prepare;

b)         Mrs A smacked and hit Miss H;

c)         after Miss H had put the children to bed, Mrs A attacked her and beat her, threw her out of the house and poured water over her;

d)         on his return from work, Mrs A's husband let Miss H back into the house but later changed his mind and said Mrs A could do whatever she liked to Miss H;

e)         thereupon Mrs A opened the door, told Miss H to leave the house and to die and pushed her outside again;

f)          Miss H slept in the garden in her wet clothes;

g)         at 7am she tried to get back into the house but no one would open the door; and

h)         she made her way to a supermarket car park, where she was found and taken to the Social Services department of the Local Authority.

Concluding the lead judgement, Lord Wilson said:

the decision of the Court of Appeal to uphold Mrs Allen's defence of Illegality to her complaint runs strikingly counter to the prominent strain of current public policy against trafficking and in favour of the protection of its victims.  The public policy in support of the application of that defence, to the extent that it exists at all, should give way to the public policy to which its application is an affront

Miss H was represented by Anti Trafficking and Exploitation Unit, a charity founded by 5 lawyers, and by two barristers who gave their time and skill pro bono.

Our view…

It is 2014, not 1614. This is a striking example of the law in action, especially in the context of the government's travails under the Human Rights Act (see our separate pieces on this).