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David Reade Q.C. and Niran de Silva appeared for the successful appellant in Hounga v Allen [2014] UKSC 47, an important decision on illegality as a defence to discrimination claims.

The facts were as follows. In a plan "masterminded” by the family of Mrs Allen in Nigeria, Miss Hounga had entered the UK illegally and was illegally employed in Mrs Allen’s home, where she suffered "serious physical abuse” before being dismissed. Miss Hounga brought a claim for race discrimination which the Employment Tribunal and EAT upheld. The Court of Appeal however upheld an illegality defence - in particular because Miss Hounga had no right to work in the UK - and dismissed her claim.

The Supreme Court unanimously allowed Miss Hounga’s appeal, finding that:

- there was no "inextricable link” between the illegality and her claim for discrimination. The illegal contract did no more than provide the context in which the discrimination occurred;

- as a matter of public policy, to allow such a claim would not compromise the integrity of the legal system or amount to the court condoning the illegality.

By a 3-2 majority, it further held that the illegality defence could not succeed as victims of human trafficking must have a right to compensation for discrimination, in accordance with the UK’s international obligations regarding trafficking and as a matter of public policy.

The case will have repercussions for traffickers who mistreat their victims because of sex of race.However, the importance of this case goes well beyond this. By drawing a clear distinction between illegality which is "Inextricably linked” to the discrimination and that which merely provides the setting for it, the Supreme Court has limited the scope of the illegality defence and it is likely that quite extreme circumstances will be required for the defence to succeed.

David and Niran were instructed by the Anti Trafficking and Labour Exploitation Unit (a charity which provides legal representation to victims of trafficking) and supported by the Equality and Human Rights Commission. Anti-Slavery International intervened in the appeal.

Posted: 30.07.2014 at 10:14
Tags:  Cases
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