Hounga v Allen: Illegal worker allowed to pursue a claim on discrimination grounds

In July 2014, the supreme court ruled that victims of human trafficking are entitled to claim for  compensation to recover damages, even if their entry into the UK is illegal. The supreme court overturned a judgement made by the court of appeal, that had refused a Nigerian woman her  employment tribunal award against her former employer (Hounga v Allen). The court of appeal refused her claim for compensation because of the illegality of the original contract of employment. The subsequent overruling, in favour of the claimant, opens up wider issues concerning immigration, contract and employment law.


Details of the Hounga v Allen case:


Miss Hounga arrived in the UK from Nigeria in January 2007. For two years before her arrival, she had worked for Mrs Allen’s brother in Lagos as a live-in-helper. Mrs Allen’s brother proposed to Miss Hounga that she went to live in England where she could work for Ms Allen and go to school. Miss Hounga readily accepted and was enthused about the prospect of an education. She was then issued by her employer with an illegal Nigerian passport. The passport gave her entry into the UK as a 6-month visitor. For 18 months Miss Houngra worked as an au pair but did not receive the promise of an education. During her stay with Mrs Allen, she was physically and mentally abused. During one particular episode of violence, Miss Hounga was beaten and then evicted from the house. She slept rough and was then taken to social services by a stranger.


Following these events Miss Hounga filed a claim for wrongful dismissal, unfair dismissal, unpaid wages and holiday pay. She also brought claims for discrimination and harassment. There then ensued a tussle between the Employment Tribunal (EAT) and The Court of Appeal.


The Employment Tribunal dismissed the contract claims on grounds of illegality, and held that the harassment claim could not be considered due to the lack of a grievance procedure. The Court of Appeal overturned this point due to the tribunal’s failure to consider an exception to the requirements of a grievance procedure. The EAT only upheld one of her complaints of unlawful discrimination (on racial grounds). Allen was ordered to pay £6,187 compensation to Hounga. This was then later overturned by the Court of Appeal as it was said that to pay the award, would in effect condone the illegality of her arrival into the UK.


This case provides us with a contentious argument which straddles immigration law, human and civil rights. As it stands ‘irregular’ migrants are not afforded basic labour rights. Under the Court of Appeal’s ruling, the doctrine of ‘illegality’ resulted in an illegal migrant being denied fundamental rights regarding work. The fact that the court refused to pay compensation conflicts with Article 4 of the Human Rights Convention which requires protection from forced labour. Upholding the defence of illegality  in effect counteracts with public policy of trafficking. The International Labour Organisation lays out six indicators of forced labour, three of which existed in the Houngra v Allen case: physical harm, withholding wages and threats of denunciation to the authorities.


The compensation the claimant received finally was only for the trafficking aspect of her case and did not relate to the act of discrimination. Aidan McQuade, the director of Anti-Slavery International said: “We are happy that the court recognised that trafficked people have the right to claim damages from their traffickers even if their status in the UK is irregular”. This was a small victory for the civil rights of illegal immigrants and an interesting example of how an illegal contract, such as Houngra’s was perceived from an employment perspective.