EAT JURISDICTIONAL POINTS – Fraud and illegality
The Claimant brought claims for unfair dismissal, breach of contract, unpaid wages and unpaid holiday pay as well as racial discrimination arising out of her employment and her dismissal by the Respondents.
The Claimant had been engaged in Nigeria to come to the United Kingdom to work as a domestic servant for the Respondents. In order to come to this country the Claimant at the instigation of the First Respondent made an affidavit which contained many material inaccuracies such as stating that her surname was the same as that of the First Respondent, explaining that she had received a letter of invitation to visit the United Kingdom from the mother of the First Respondent and that she had described that lady as her grandmother.
The Claimant was party to this dishonesty. She received a six-month visa to come to England as a visitor but after its expiry in July 2007, she remained in the country illegally. The Claimant was subjected to harsh treatment by the First Respondent and was dismissed in unacceptable circumstances.
The Employment Tribunal held that:-
(a) That the contract of employment between the Claimant and the Respondents was tainted with illegality and she therefore could not bring claims for unfair dismissal, breach of contract, unpaid wages and holiday pay;
(b) The unlawful race discrimination claim of the Claimant succeede
(c) The other racial discrimination claims of the Claimant other than relating to dismissal should have been, but were not the subject of a grievance procedure and so the employment Tribunal had no jurisdiction;
(d) The Claimant was not entitled to an award of loss of earnings following her dismissal; and
(e) The Claimant was entitled to compensation of andpound;6,000 for injury to feelings together with some interest.
The Claimant appealed against (a), (c), (d) and (e) and the First Respondent cross-appealed against (b).
The Second Respondent was debarred from taking part in the appeal.
Held:
Dismissing the appeal and the cross-appeal as: –
(a) This was an illegal contract, the claims for unfair dismissal, breach of contract, unpaid wages and holiday pay could not be enforced (Enfield Technical Services v. Payne [2008] ICR 30 and [2008] ICR 1423 applied);
(b) The discriminatory dismissal illegality issue could proceed because the claim was not inextricably bound up or linked with the illegal conduct (Hall v Woolston Hall Leisure Ltd [2001] ICR 99 applied);
(c) The Claimant had failed to comply with the compulsory grievance procedures and was also unable to take advantage of any of the exceptions with the result that the non-dismissal racial discrimination claims failed; and
(d) The Claimant was not entitled to an award for loss of earnings as she was not allowed to work in this country; and
(e) There was no error of law in the award of damages for injury to feelings.
Silber J
[2011] UKEAT 0326 – 10 – 3103
Bailii
England and Wales
Cited by:
Appeal From – Hounga v Allen and Another CA 15-May-2012
. .
At EAT – 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: 31 October 2021; Ref: scu.431870