Allen (Nee Aboyade-Cole) v Hounga & Anor

Knowingly participating in illegal performance of an employment arrangement may bar contractual claims. It does not automatically bar a statutory discrimination claim. The claim is barred only where it is so closely connected with the illegality that awarding compensation would appear to condone it. Grievance-procedure exceptions apply only while compliance remains impracticable or the relevant harassment continues. Loss of earnings cannot be awarded for work which the claimant had no legal right to perform. An injury-to-feelings assessment will be disturbed only on the high threshold of perversity.

The claimant had been brought from Nigeria to work as a domestic servant after participating in dishonest arrangements to obtain travel documents and a visitor’s visa. She remained in the United Kingdom after the visa expired and was seriously ill-treated before being dismissed and evicted.

The Employment Tribunal held that the employment contract was tainted by illegality, allowed the discriminatory-dismissal claim, rejected other discrimination claims for failure to use the statutory grievance procedure, awarded £6,000 for injury to feelings, and refused loss-of-earnings compensation. The claimant appealed and the first respondent cross-appealed.

1. Contractual claims. The appeal was dismissed. Applying Enfield Technical Services v Payne [2008] ICR 30, affirmed by the Court of Appeal at [2008] ICR 1423, and Hall v Woolston Hall Leisure Ltd [2001] ICR 99, the claimant had knowingly participated in illegal performance by making false statements to obtain entry and working without permission. Her vulnerability did not remove active participation.
2. Discriminatory dismissal. The cross-appeal was dismissed. A discrimination claim is tortious and is not barred merely because the employment relationship was illegal. The relevant question was whether the claim was so closely connected or inextricably bound up with the illegality that compensation would appear to condone it. Vakante v Governing Body of Addey and Stanhope School [2005] ICR 231 was fact-sensitive. The dismissal and eviction were not inextricably linked to the claimant’s earlier illegality.
3. Grievance procedure. The exceptions in regulations 6(4) and 11(3) of the Employment Act 2002 (Dispute Resolutions) 2004 applied only while compliance was impracticable or harassment continued. Once the claimant knew the respondent’s address and was no longer exposed to workplace harassment, she could and should have lodged a grievance.
4. Remedies. Loss of earnings was unavailable because the claimant had no legal right to work in the United Kingdom. The £6,000 injury-to-feelings award fell within the appropriate Vento bracket and was not perverse. The appeal and cross-appeal were dismissed.

• Employment Appeal Tribunal: dismissed the claimant’s appeals and the first respondent’s cross-appeal.
• Employment Tribunal: held that the contract was tainted by illegality; allowed the discriminatory-dismissal claim; rejected the other discrimination claims for failure to use the grievance procedure; awarded £6,000 for injury to feelings; and refused loss-of-earnings compensation.