The Employment Appeal Tribunal (EAT) is often criticised for its pro-employee stance on many issues (in contrast with the Court of Appeal which often takes a harder and more pro-employer contractual interpretation of the law). In Allen v Hounga however the EAT has confirmed it is no pushover.

This was a tragic case of abuse and exploitation demonstrating the very strict operation of the law applicable to illegality of contract. The Claimant was a Nigerian who came to work in the UK as a domestic servant. On the employer’s instigation, the Claimant obtained a Nigerian passport in their family name and falsely suggested in her visa application that she was a relative of theirs visiting for a holiday. She then intentionally overstayed. The Claimant was paid £50 per month and was subjected to serious physical abuse by the Respondent and she ultimately resigned.

In upholding the Tribunal’s decision, the EAT held that:

Despite the Respondent instigating the illegality, the Claimant had knowingly participated in it and therefore the claims for unfair dismissal, holiday pay and breach of contract were unenforceable. Nor was she entitled to any potential loss of earnings resulting from her discriminatory dismissal because she never had the right to work in this country. The only plus side for the Claimant was that she was entitled to an award for injury to feelings as the Tribunal found that claim was not ‘inextricably linked’ with the illegality.

Comment

Employees and workers who knowingly cooperate in illegal conduct run the risk of subsequent claims in the Tribunal being held to be unenforceable. That is a policy decision by the Courts, but can often operate harshly to the detriment of Claimants. Whilst it is not a defence to be recommended for employers, it is nevertheless notable that the strict rules relating to illegality of contract can assist to defeat claims in the Tribunal.