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David Reade Q.C. & Niran de Silva Succeed in Supreme Court on Law of Illegality

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.

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