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Race discrimination and the doctrine of illegality

Research output: Contribution to journalArticle

Original languageEnglish
Pages (from-to)12-17
Number of pages6
JournalLaw Quarterly Review
Volume129
Issue numberJanuary
Early online date10 Oct 2012
DateE-pub ahead of print - 10 Oct 2012
DatePublished (current) - 1 Jan 2013

Abstract

Ms Hounga arrived in the United Kingdom from Nigeria in 2007 to work illegally as an au pair and domestic help for Mr and Mrs Allen. Her age was indeterminate but she may have been as young as 14 when she entered the arrangement. The*L.Q.R. 13 tribunal found that she had been discriminated against on the grounds of her nationality in the most appalling circumstances. A defence of illegality precluded any claim which might arise under her contract of employment, including unfair dismissal, but both the tribunal and the Employment Appeal Tribunal took the view that the admitted illegality—the violation of immigration rules—did not bar her claim based on the statutory tort of racial discrimination. By way of contrast, the Court of Appeal has now upheld the employer’s appeal on the illegality point. A single judgment delivered by Rimer L.J. took the view that Ms Hounga’s claim was “inextricably bound up” with the illegality in question and therefore to permit her to recover compensation would appear to condone her unlawful conduct ( Allen v Hounga [2012] EWCA Civ 609). It is respectfully submitted that the reasoning and outcome in Hounga on the issue of illegality is flawed, as it is inconsistent with authority and involves a faulty application of illegality principles. While the doctrine of illegality is something of a mess in the common law (for lucid analysis, see J. Goudkamp, “The Defence of Joint Illegal Enterprise” (2010) 34 Melbourne University Law Review 425), Hounga marks a new low point in its chequered legal existence.

Additional information

Cited by the Supreme Court in Hounga v Allen & others [2014] UKSC 47 at para. 35

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