V v Addey & Stanhope School

An employment discrimination claim may be barred by illegality where it arises from, or is so clearly connected or inextricably bound up with, the claimant’s illegal conduct that awarding compensation would appear to condone that conduct. The inquiry extends beyond causation. Relevant matters include the nature and seriousness of the illegality, the claimant’s involvement, the circumstances surrounding the claim and the character of the claim.

A claimant who deliberately obtains and continues employment without permission, through false representations, may therefore be barred from pursuing discrimination complaints arising from that employment. A subsequent non-retrospective change in the law cannot establish an error in a tribunal decision made before that change took effect.

The appellant, a Croatian national awaiting determination of his asylum application, obtained employment as a trainee teacher after falsely stating that he did not require a work permit. He had been informed that he could not work without permission. He later complained to an employment tribunal of direct race discrimination and victimisation relating to his training, treatment and dismissal.

Following an earlier remission, the employment tribunal held that all the complaints were inextricably bound up with the appellant’s illegal employment and dismissed the application at a preliminary hearing. The Employment Appeal Tribunal dismissed his appeal. He appealed to the Court of Appeal, contending that his statutory discrimination claim did not depend on enforcing the employment contract and that Council Directive 2000/43/EC prevented reliance on illegality.

1. Appeal dismissed. The employment tribunal made no error of law in holding that the discrimination complaints were barred by illegality. The Employment Appeal Tribunal was right to dismiss the earlier appeal.

2. The approach stated in Hall v Woolston Hall Leisure Ltd [2001] ICR 99 was binding. The tribunal had to decide whether the claim arose from, or was so clearly connected or inextricably bound up with, the claimant’s illegal conduct that recovery would appear to condone that conduct. This was not confined to legal or factual causation. It required an assessment of fact and degree, including the surrounding circumstances, the nature and seriousness of the illegality, the extent of the claimant’s involvement and the character of the claim.

3. The case was materially different from cases in which the employer performed an otherwise lawful contract illegally and the employee merely knew of, and benefited from, that conduct. The appellant’s conduct was deliberate and criminal. He obtained and continued employment without permission by making a false statement, despite clear written notice that he could not work. The illegality concerned the fundamental content of the employment relationship and persisted throughout it.

4. The statutory duty not to discriminate arose from the unlawful employment situation on which the appellant necessarily relied. His complaints were therefore inextricably bound up with his own illegality. Permitting compensation would appear to condone that conduct. Refusing to entertain the application did not condone any discrimination by the school; it reflected the appellant’s disqualification, through his own illegal conduct, from pursuing the remedies claimed.

5. Council Directive 2000/43/EC did not assist. It took effect only after the alleged acts and after the employment tribunal’s decision. An appellate court ordinarily determines whether the tribunal erred under the law applicable when it decided the case. Applying the Directive on appeal would improperly give it retrospective effect.

1. Court of Appeal (Civil Division): The appeal was dismissed with costs, subject to detailed assessment. Permission to appeal to the House of Lords was refused.

2. Employment Appeal Tribunal: Burton J, President, dismissed the appellant’s appeal on 26 November 2003 and upheld the second preliminary ruling of the employment tribunal.

3. Employment Tribunal: In extended reasons sent on 30 May 2003, the tribunal dismissed the originating application because all the allegations fell within the illegality principle. This followed an earlier tribunal ruling rejecting illegality, a successful appeal by the school, and an August 2002 order remitting the issue for rehearing.