An abused worker's unfair dismissal, holiday and unpaid wages claim was refused by reason of illegality

The Race discrimination claim succeeded and compensation for injury to feelings was awarded

Allen (Nee Aboyade-Cole) v Hounga & Anor [2011] UKEAT 0326_10_3103

    Helping You     About     Links     Contact     Site Info     HOME

• A worker knowingly involved in illegal work or practices is not protected for anything related to the illegality
• The worker is protected where the employer's acts are not related to the illegality.
• The worker succeeded in her Race Discrimination claim.
• This case was decided on established precedents.

In this EAT case (Silber J) a domestic servant was hired in Nigeria. She was granted a 6 month visa to visit her employers for a 'holiday' after having falsely claimed she was related to them. She worked as an au pair in the UK for her employers under the pretense of being related to them for £50 a month and overstayed her visa. Whilst working here the teenage worker was physically and otherwise abused and was eventually dismissed. The worker was referred to social services after being found in a car park.

The ET found that the worker was not entitled to bring claims for unfair dismissal, breach of contract, unpaid wages and holiday pay although she succeeded int the race discrimination claim and was awarded £6,000 for injury to feelings.

The EAT supported the ET in its finding that as the the Claimant had knowingly participated in a dishonest scheme the other claims e.g. for holiday pay and loss of earnings were too closely bound to the illegality for those claims to be allowed to succeed.

The Employment Tribunal was criticised for having mentioned cases that affected its judgment without explaining how the authorities affected its conclusions. The representatives agreed that the EAT could make relevant decisions so as to avoid a re-hearing of the case before another employment tribunal.

Claims for unfair dismissal, breach of contract, unpaid wages and holiday pay are not enforcable (Enfield Technical Services v. Payne [2008] ICR 30 and [2008] ICR 1423);

The discriminatory dismissal illegality claim could be heard as it was not linked to the illegal conduct (Hall v Woolston Hall Leisure Ltd [2001] ICR 99);

The EAT approach to illegality of a contractual claim Enfield Technical Services v. Payne [2008] ICR 30 confirmed by the Court of Appeal (2008) ICR 1423 was applied whereby there are three categories of cases where a contract may be tainted with illegality (Peter Gibson LJ in Hall v Woolston Hall Leisure Ltd [2001] ICR 99 [30]-[31])

"26.. (3) ..The first is where the contract is entered into with the intention of permitting an illegal act. The second is where the contract is expressly or impliedly prohibited by statute. The third is where the contract was lawful when made but has been illegally performed, and the party seeking the assistance of the court knowingly participated in the illegal performance.
(4) In order to fall within this third category, it is traditionally said there are two requirements. There must be a knowledge of the illegal performance and participation..
(5) Implicit in the analysis of Peter Gibson LJ is of course a third requirement, namely that the performance must be illegal. It must be a form of illegality which properly attracts the operation of the doctrine.
(6) The concept of knowledge requires the employee must have knowledge of the fact which render the performance illegal.. however it is irrelevant where the party appreciates what he is doing is illegal. Ignorance of the law is no excuse this has been reiterated on many occasions..
(7) The concept of participation requires some active participation. There are cases in which the courts have held that mere knowledge of the illegality coupled with the failing to do something about it can constitute participation.."

The EAT believed that the case fell into the third category as there was knowledge of illegal performance and participation owing to the Claimant's untrue statements.

The EAT did not accept the submission by Mr Michael Reed of the Free Representation Unit (FRU) that the Claimant's circumstances and vulnerability meant that in spite of her role there was a question of whether she could be considered to be an active participant. The EAT based its rejection on the Claiman'ts false affidavit, her fraudulenty obtaining a visa and working illegaly. The EAT stressed the caselaw whereby a party should not be allowed to benefit from illegality, that the Claimant participated in and benefited from the illegality in coming to the UK:

• Tinsley v Milligan [1994] 1 AC 340, 355 whereby, "it is a principle of policy whose application is indiscriminate and can lead to unfair consequences as between the parties' litigation".
• In Newland v Simons & Willer (Hairdressers) Ltd [1981] ICR 521 at 532, "the courts exist to enforce the law, not to enforce illegality".

The EAT rejected the respondent's argument that Vakante v Governing Body of Addey and Stanhope School [2005] ICR 231 meant that the Claimant's discrimination could not succeed. The EAT found that case as being one that was fact-sensitive, not establishing that if an employee does not have the legal right to work in the United Kingdom he cannot bring a discrimination claim.

The Claimant's appeal and the cross-appeal were dismissed.

© 2011 Workrep