Hounga v Allen: illegality and exploitation

15 Aug

The conflict between the defence of illegality in an employment contract, and public policy were considered by the Supreme Court recently in Hounga v Allen and another (anti-slavery international intervening).

 

 

 

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court exterior image from 12 cp barristers blog

The conflict between the defence of illegality in an employment contract, and public policy were considered by the Supreme Court recently in Hounga v Allen and another (anti-slavery international intervening).

The Claimant, just 14 when she arrived in the UK from Nigeria, had knowingly entered the UK under false pretences. The appeal of an education in the UK, and £50 a month pay – small for us, but significant for her, was obvious. In return, she would be an au pair and all round dogsbody to the Allen family, who appeared to be family friends.

There is no doubt that she was illegally employed in the UK, and Miss Hounga was aware of this. It is also worth noting that as well as only being 14 years old, she was found to have a learning disability, long term emotional problems and was illiterate, though she did thankfully speak English well.

Unfortunately for Miss Hounga, the promised life in the UK did not turn out as rosy as hoped.  Whilst the extent of her exploitation is far from certain,  it appears she was largely confined to the house, albeit using psychological rather than physical pressure. She had been warned that if she left and was caught by the police, she would be imprisoned. The promised education never materialised, and she was physically abused by the Allen family.

After 18 months, matters came to a head one day, when unhappy that her children would not eat the dinner Miss Hounga had prepared, she attacked the now 15/16 year old Miss Hounga, who dutifully put the children to bed, before returning to her beating. She was then thrown out of the house, and had water thrown over her. After a night of sleeping in the garden, still in her wet clothes, she found help outside a local supermarket.

Miss Hounga subsequently brought various claims against Mrs Allen, her employer.  The Supreme Court decision is on Miss Hounga’s claim of race discrimination – that Mrs Allen discriminated against Miss Hounga on the grounds of her nationality. The central issue for the Court was whether Miss Hounga could pursue this, given the illegality of her employment relationship.

The Court of Appeal found that her employment contract was so tainted by illegality, that it proved fatal to her discrimination claim. She appealed to the Supreme Court.

The Court considered whether there was an inextricable link between the complaint and the illegal conduct. Such a link was absent in this case.

Further, as Lord Wilson pointed out “the defence of illegality rest upon the foundation of public policy”  Consideration of the public policy arguments was central in this case.  The Court found that if Miss Hounga was not the victim of human trafficking , she was very close to it. In those circumstances, the UK had international obligations to allow her to bring her claim. It was considered whether the Tribunal’s award of compensation allowed her to profit from her wrongful conduct (no, it was compensation for injury to feelings) and did the award compromise the integrity of the legal system by encouraging people in Miss Hounga’s  position to enter into illegal contracts (no, especially given the circumstances of this case).

The Judgement is well worth a read, and can be found at: http://supremecourt.uk/decided-cases/docs/UKSC_2012_0188_Judgment.pdf

 

 Ceri Harrison

 

 

 

 

For more information on Employment Law, click here.