Illegal contracts and discrimination

Abstract

The Court of Appeal in Hounga v Allen & Anor [2012] EWCA Civ 609 had to decide whether someone working illegally in the United Kingdom, was entitled to bring a claim for dismissal discrimination under the now repealed Race Relations Act 1976. The Court of Appeal, unlike the Employment Tribunal and the Employment Appeal Tribunal, which had accepted Ms Hounga's claim, refused to allow her to bring the claim because she was working under an illegal contract of employment. The decision was on the grounds of public policy. The Court of Appeal was anxious to avoid being seen as condoning her illegality and would not allow her to enforce the illegal contract of employment. Consequentially, Ms Hounga’s employers were not liable for discriminating against her. Taken to an extreme, the effect of the decision in Hounga v Allen & Anor would appear to provide a defence to employers who employ illegal immigrants and then discriminate against them.