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Supreme Court says illegal migrant worker can sue employer for race discrimination

The illegality of a worker’s employment cannot prevent her from suing an erring employer for race discrimination.

In its ruling in Hounga v Allen and another 30 Jul 2014, the Supreme Court upheld an illegal worker’s claim for race discrimination. The Court reasoned that denying a race discrimination claim may encourage unscrupulous employers to exploit illegal workers who are vulnerable.  

The case of Hounga involves a Nigerian woman who entered UK at age 14 in 2007. She willingly conspired with her UK employers in deceiving British immigration authorities in Nigeria so that she can secure a visitor’s visa and live with her employers as a domestic assistant and attend college later on. When she was dismissed by her employers after 18 months, she filed for racial harassment under the Race Relations Act 1996 (now the Equality Act 2010).

Her claim was rejected by the employment tribunal, Employment Appeal Tribunal and the Court of Appeal because she knew she was working the UK illegally.

But the Supreme Court said it is wrong to deny her claim and remanded the case back to the employment tribunal to determine whether she has established grounds for her discrimination claim. The Court said the illegality of her employment contract has no relation to her claim that she was mistreated by her employers due to her race. The High Court went on to say that her claim should be entertained to discourage employers from thinking they can get away with discriminating against illegal migrant workers.       

In light of the Hounga ruling, HR experts are warning employers to carefully consider their grounds before dismissing an illegal worker because they may not be able to invoke the defence of the illegality of the worker’s employment.

Speaking to HR industry and Magazine “Personnel Today”  , XpertHR employment law editor Kikuyu Thompson commented: “Employers should be mindful of the role of public policy when using the defence of illegality."    


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