Hounga v Allen & Anor

The Court of Appeal considered (i) whether the statutory grievance procedures under section 32 of the Employment Act 2002, Schedule 2 and the Employment Act 2002 (Dispute Resolution) Regulations 2004 (in particular regulations 6 and 11) were disapplied so as to permit a non-dismissal race discrimination claim to proceed where no grievance had been raised; and (ii) whether a claimant’s illegality in obtaining and performing employment barred her statutory claim for discriminatory dismissal under the Race Relations Act 1976. The court held that the tribunals below had failed to address the separate question raised by regulation 11(3)(c) (whether it was practicable to comply within a reasonable period) and remitted that grievance-point in principle, but found on the cross-appeal that the claimant’s dismissal discrimination claim was barred by public policy because her claim was inextricably bound up with her own illegal conduct in obtaining and performing the employment (applying the tests in Hall and Vakante). The result was that the dismissal-discrimination award was set aside and the non-dismissal discrimination claim was dismissed without remission in light of the successful cross-appeal.

This case concerned an au pair, Ms Hounga, who had come to the United Kingdom on a visitor visa and then worked for the Allen family. After dismissal she brought tribunal claims including (a) dismissal discrimination and (b) non-dismissal discrimination. The Employment Tribunal found the contract illegal and dismissed contractual claims, but accepted the dismissal-discrimination claim and dismissed the non-dismissal discrimination claim for failure to follow the statutory grievance procedures. The Employment Appeal Tribunal upheld the tribunal on both points. On appeal to the Court of Appeal the parties cross‑appealed.

• Nature of the claim: claims under the Race Relations Act 1976 for discriminatory dismissal and for discriminatory treatment during employment; also issues about statutory grievance pre‑condition under the Employment Act 2002 (s.32), Schedule 2 and the 2004 Dispute Resolution Regulations.
• Issues framed: (i) whether regulations 6 and 11 disapplied the statutory grievance procedure so as to permit a non‑dismissal discrimination claim despite no grievance being raised (focus on reg.11(3)(c) 'reasonable period'); and (ii) whether illegality barred the dismissal discrimination claim, applying the public policy/illegality principles identified in Hall v Woolston Hall and Vakante.
• Court’s reasoning: the Court of Appeal (Rimer LJ) held that the tribunals below had not addressed the distinct question under regulation 11(3)(c) and that the matter should, in principle, have been considered by the fact‑finding tribunal; however, on the cross‑appeal the court concluded that the claimant’s dismissal discrimination claim was so clearly linked to her own illegal conduct in obtaining and continuing the employment that allowing the claim would condone illegality (drawing on Hall and Vakante). Given that conclusion the Court ordered there be no remit to the tribunal and dismissed the non‑dismissal discrimination claim.

The court also emphasised procedural fairness failings at tribunal level (a tribunal raising and deciding jurisdictional issues of its own motion without prior notice to the claimant) and clarified that evidence was required for reliance on regulation 11(3)(b) (harassment ground).

Appeal and cross-appeal allowed in part. The Court held that the tribunals below had failed to address the separate factual question under regulation 11(3)(c) (practicability within a reasonable period) but, on the cross-appeal, concluded that the claimant’s dismissal discrimination claim was barred by public policy because it was inextricably bound up with her own illegal conduct in obtaining and performing the employment (applying Hall and Vakante). As a consequence the dismissal discrimination award was set aside and the non-dismissal discrimination claim dismissed.

On appeal from the Employment Appeal Tribunal (Silber J, Mr K. Edmondson JP and Mrs M.V. McArthur BA FCIPD) UKEAT/0326 to 03229/10/LA; Court of Appeal judgment: [2012] EWCA Civ 609 (Rimer LJ, Longmore LJ, Sir Scott Baker) delivered 15 May 2012.