The respondent resisted a claim of unfair dismissal and race discrimination on the basis that the employment contract was illegal since the claimant was an immigrant and unable to work without a work permit.
Held: The Court of Appeal upheld a defence of illegality to a teacher’s complaint against a school of unlawful discrimination by dismissal on racial grounds. The teacher was an asylum-seeker who was not entitled to work in the UK without a work permit, which he never obtained. This not a case where the applicant has been working in good faith in the belief that it was lawful for him to work. As to the illegal conduct here (a) it was that of the applicant; (b) it was criminal; (c) it went far beyond the manner in which one party performed what was otherwise a lawful employment contract; (d) it went to the basic content of an employment situation-work; (e) the duty not to discriminate arises from an employment situation which, without a permit, was unlawful from top to bottom and from beginning to end. The teacher’s employment ‘was unlawful from top to bottom and from beginning to end’.
The court had ‘to consider whether the applicant’s claim arises out of or is so clearly connected or inextricably bound up or linked with the illegal conduct of the applicant that the court could not permit the applicant to recover compensation without appearing to condone that conduct.’ Mummery LJ analysed the inextricable link test: ‘Although Hall’s case . . uses some of the familiar language of legal and factual causation (‘connection’, ‘link’), the test does not restrict the tribunal to a causation question. Matters of fact and degree have to be considered: the circumstances surrounding the applicant’s claim and the illegal conduct, the nature and seriousness of the illegal conduct, the extent of the applicant’s involvement in it and the character of the applicant’s claim are all matters relevant to determining whether the claim is so ‘inextricably bound up with’ the applicant’s illegal conduct that, by permitting the applicant to recover compensation, the tribunal might appear to condone the illegality.’
Judges:
Lord Justice Mummery President, The Vice President Lord Justice Brooke
Citations:
[2004] EWCA Civ 1065, Times 28-Sep-2004, [2004] 4 All ER 1056, [2005] 1 CMLR 3, [2005] ICR 231
Links:
Statutes:
Immigration Act 1971 24, Race Relations Act 1976 (Amendment) Regulations 2003, Council Directive 2000/43/EC
Jurisdiction:
England and Wales
Citing:
Cited – Hall v Woolston Hall Leisure Limited CA 23-May-2000
The fact that an employment contract was tainted with illegality of which the employee was aware, did not deprive the employee of the possibility of claiming rights which were due to her under a statute which created rights associated with but not . .
Appeal from – V v Addey and Stanhope School and others EAT 25-Nov-2003
EAT Race Discrimination – Detriment . .
Cited – Leighton v Michael and Another EAT 26-Oct-1995
A sex discrimination claim stood despite unlawful elements of employment contract. The claim was not barred by the applicant’s knowledge that the employer was not making the required deductions from wages. . .
Cited – Relaxion Group plc v Rhys-Harper; D’Souza v London Borough of Lambeth; Jones v 3M Healthcare Limited and three other actions HL 19-Jun-2003
The court considered whether discriminatory acts after the termination of employment were caught by the respective anti-discrimination Acts. The acts included a failure to give proper references. They pursued claims on the basis of victimisation . .
Cited – National Union of Teachers and others v Governing Body of St Mary’s Church of England (Aided) Junior School and others CA 12-Dec-1996
The acquired rights directive applies to a board of governors of a school since it is an ’emanation of state’.
LMA This was a claim by teachers who had lost their jobs. They claimed the protection of te . .
Cited by:
Cited – Witkowska v Kaminski ChD 25-Jul-2006
The claimant sought provision from the estate claiming to have lived with the deceased as his partner for the two years preceding his death. She appealed an order which would be enough to allow her to live in Poland, but not in England. She said . .
Cited – Hounga v Allen and Another SC 30-Jul-2014
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Updated: 11 June 2022; Ref: scu.199632