Wijesundera v Heathrow 3PL Logistics Ltd

A person who has applied for employment may claim harassment occurring before employment begins under section 40(1)(b) of the Equality Act 2010, provided the harassment is in relation to employment by the respondent. Illegality is not an automatic bar to a discrimination claim. The tribunal must assess all the circumstances, including the nature and seriousness of the illegality, the claimant’s involvement, and the character of the claim, asking whether the claim is inextricably bound up with the illegal conduct so that allowing it would appear to condone that conduct. Claims concerning dismissal from an unlawfully held post may be barred, whereas sexual harassment is not necessarily so connected with the employment or its terms.

The claimant applied to Heathrow 3PL Logistics Ltd and was interviewed by the second respondent, Mr Natarajan. She made clear that she required sponsorship and a work permit before she could lawfully work. Before she began working, Mr Natarajan sexually assaulted her. She later worked without the necessary permit and alleged repeated sexual harassment, followed by dismissal.

The Employment Tribunal accepted that serious and repeated harassment had occurred but dismissed the claims on the grounds that the claimant was either not employed when some acts occurred or that the employment was illegal from the outset. The claimant appealed the discrimination and harassment findings. The respondents were debarred and did not appear. The central issues were whether section 40(1)(b) applied before employment began, whether illegality barred the claims, and whether Heathrow 3PL was liable for Mr Natarajan’s acts.

1. Appeal and pre-employment harassment. The appeal was allowed except in relation to the complaint concerning dismissal. Section 40(1)(b) of the Equality Act 2010 expressly protects a person who has applied for employment. The claimant was plainly an applicant when the first assaults occurred. The Employment Tribunal therefore erred in treating employee status at the time of the acts as essential to jurisdiction.
2. Illegality defence. The Tribunal also erred by treating illegality as an automatic bar and by asking only whether the present case could be distinguished from Vakante and Hounga. The applicable principle was that stated in Hall v Woolston Hall Leisure Ltd: the tribunal must consider all the facts and determine whether the claim is so clearly connected or inextricably bound up with the claimant’s illegal conduct that permitting recovery would appear to condone it. Relevant matters include the circumstances surrounding the claim, the nature and seriousness of the illegality, the claimant’s involvement, and the character of the claim.
3. The claimant participated in illegality only after she began working without a permit. The earlier assaults were unconnected with any illegality on her part. Apart from dismissal, the harassment claims were not inextricably bound up with the illegal conduct. Sexual harassment did not depend upon the existence or terms of the unlawful contract, although employment provided the practical opportunity for it. The illegality defence therefore did not defeat those claims.
4. The dismissal complaint was different. Dismissal from a post which the claimant should never have occupied because the employment was unlawful was intimately connected with the illegality and could not properly found an award of compensation.
5. Liability of Heathrow 3PL. Mr Natarajan was personally liable. Whether Heathrow 3PL was also liable under section 109 of the Equality Act 2010 was remitted. “Authority” in section 109(2) meant authority to perform acts capable of being done lawfully or unlawfully, rather than authority specifically to harass. The Tribunal was to reconsider whether Mr Natarajan was an employee, co-principal or agent acting with the requisite authority. No new evidence was permitted unless agreed.

• Employment Tribunal, Watford: dismissed the discrimination and harassment complaints on the ground of illegality. The unfair and wrongful dismissal claims were not appealed.
• Employment Appeal Tribunal: allowed the appeal except in relation to dismissal; declared illegality no defence to the other claims and remitted the issue of Heathrow 3PL’s liability for Mr Natarajan’s acts.