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Hounga v Allen & Anor

Hounga v Allen & Anor

Case [2014] UKSC 47 30 July 2014

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Summary

Trinity Term
[2014] UKSC 47
On appeal from: [2012] EWCA Civ 609

JUDGMENT

Hounga (Appellant) v Allen and another (Respondents)

before

Lady Hale, Deputy President
Lord Kerr
Lord Wilson
Lord Carnwath
Lord Hughes

JUDGMENT GIVEN ON

30 July 2014

Heard on 31 March and 1 April 2014

Appellant David Reade QC Niran de Silva (Instructed by Anti Trafficking and Labour Exploitation Unit)		Respondent Thomas Linden QC Laura Prince (Instructed by Crowther Solicitors)

Interveners (Anti-Slavery International) Jan Luba QC Kathryn Cronin Ronan Toal Michelle Brewer (Instructed by Public Interest Lawyers)

LORD WILSON (with whom Lady Hale and Lord Kerr agree)

ISSUE

In what circumstances should the defence of illegality defeat a complaint by an employee that an employer has discriminated against him by dismissing him contrary to section 4(2)(c) of the Race Relations Act 1976? The 1976 Act was repealed by section 211(2) of, and Schedule 27 to, the Equality Act 2010 and with effect from 1 October 2010 the provision in section 4(2)(c) has been subsumed in section 39(2)(c) of the 2010 Act.

INTRODUCTION

The appellant, Miss Hounga, appears to have a current age of about 21. She is of Nigerian nationality and now resides in England. In January 2007, when she was aged about 14, she came from Nigeria to the UK under arrangements made by the family of the respondent, Mrs Allen, who is of joint Nigerian and British nationality and who resides in England with her children. Pursuant to these arrangements, in which Miss Hounga knowingly participated, her entry was achieved by her presentation to UK immigration authorities of a false identity and their grant to her of a visitor's visa for six months. For the following 18 months Miss Hounga lived in the home of Mrs Allen and of her husband who, albeit formally a respondent to it, plays no part in this appeal. Although Miss Hounga had no right to work in the UK, and after July 2007 no right to remain in the UK, Mrs Allen employed her to look after her children in the home.

In July 2008 Mrs Allen evicted Miss Hounga from the home and thereby dismissed her from the employment. This appeal proceeds on the basis that, by dismissing her, Mrs Allen discriminated against Miss Hounga in that on racial grounds, namely on ground of nationality, she treated Miss Hounga less favourably than she would have treated others.

In due course Miss Hounga issued a variety of claims and complaints against Mrs Allen in the Employment Tribunal ("the tribunal"). The one claim or complaint which the tribunal upheld was her complaint of unlawful discrimination but only that part of it which related to her dismissal. In this regard it ordered Mrs Allen to pay compensation to her for the resultant injury to her feelings in the sum of £6,187. The Employment Appeal Tribunal ("the appeal tribunal") dismissed Mrs Allen's cross-appeal against the order. But the Court of Appeal upheld a further cross-appeal brought by Mrs Allen against it and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hounga v Allen & Anor

Details

Case: [2014] UKSC 47
Decision Date