Hounga v Allen and another
| Jurisdiction | England & Wales |
| Judge | Lord Wilson,Lady Hale,Lord Kerr,Lord Hughes,Lord Carnwath |
| Judgment Date | 30 July 2014 |
| Neutral Citation | [2014] UKSC 47 |
| Court | Supreme Court |
| Date | 30 July 2014 |
[2014] UKSC 47
Lady Hale, Deputy President
Lord Kerr
Lord Wilson
Lord Carnwath
Lord Hughes
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)
Heard on 31 March and 1 April 2014
Lord Wilson (with whom Lady Hale and Lord Kerr agree)
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 The 1976 Act was repealed by section 211(2) of, and Schedule 27 to, the Equality Act 2010 and with effect from 1 October 2010 the provision in section 4(2)(c) has been subsumed in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.
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 set it aside: [2012] EWCA Civ 609, [2012] IRLR 685. By a judgment given by Rimer LJ, with which Longmore LJ and Sir Scott Baker agreed, the court held that the illegality of the contract of employment formed a material part of Miss Hounga's complaint and that to uphold it would be to condone the illegality. It is against the Court of Appeal's order, dated 15 May 2012, that Miss Hounga brings her appeal. A small claim generates an important point.
Miss Hounga and Mrs Allen both gave oral evidence to the tribunal, which concluded that both of them, but particularly Mrs Allen, had lied to it. The unreliability of the evidence must have made the tribunal's task of resolving factual issues difficult. Furthermore the tribunal's rejection of part of Miss Hounga's complaint on jurisdictional grounds, explained in para 18(c) below, may have led it to consider that it had no need to make certain findings. But whether these factors entirely explain the tribunal's widespread failure to find facts is unclear. The absence of findings has hampered the inquiry at all three appellate levels.
Miss Hounga's evidence was that, when she travelled to the UK in January 2007, she had been aged only 14. She said that an affidavit which she had sworn in Lagos just prior to her journey, in which she asserted that she had been born in July 1986 and so was then aged 20, was untrue. Mrs Allen contended before the tribunal that the assertion in Miss Hounga's affidavit was true or, at any rate, that she had been an adult by the date of her entry into the UK.
Expert evidence supported Miss Hounga's contention that in January 2007 she had been aged only 14. A consultant paediatrician with expertise in assessing age reported in January 2009 that at the date of his report she was aged about 16 and was certainly no more than 18. In June 2009 a local authority conducted a Merton-compliant age assessment and concluded similarly that, at the date of its assessment, Miss Hounga was aged 16. The tribunal said only that it was impossible to make a definite finding in relation to Miss Hounga's age. It referred to the report and to the assessment but, while it did not make an express finding about her age even in approximate terms, it gave no reason for disagreeing with them. It also accepted Miss Hounga's assertion that in the affidavit sworn in Lagos she had falsified her date of birth. In these circumstances, unsatisfactory though they are, it is reasonable to proceed – and to conclude that the tribunal proceeded – on the basis that, at the time of her entry into the UK, Miss Hounga had been aged about 14.
A psychological report on Miss Hounga, dated July 2009, was presented to the tribunal on her behalf but in its reasons the tribunal did not refer to it. The psychologist reported that Miss Hounga's cognitive functioning might well be in the extremely low range and indicated a learning disability; that she had long-term emotional difficulties; and that she functioned at a developmental age much lower than her chronological age which, again, the writer took to be 16 as at the date of the report. The tribunal did acknowledge that Miss Hounga was illiterate and had not received an education in Nigeria but it added that she spoke English well.
Understandably the tribunal did not resolve an issue whether, as Miss Hounga claimed, her parents were dead. It did find, however, that in due course Miss Hounga had joined the well-to-do family of Mrs Allen's brother in Lagos; that for two years she had lived there as a home help; that in due course Mrs Allen's mother, who lived in England but was visiting Lagos, and Mrs Allen's brother had jointly put a proposal to Miss Hounga, which she had willingly accepted, that she should go to live in England with Mrs Allen, where she would again work as a home help but would also go to school; and that, by telephone, Mrs Allen had offered to pay her £50 per month additional to the provision of bed and board. The tribunal found that it was the prospect of education in England which particularly attracted Miss Hounga.
The tribunal found that Mrs Allen's brother in Lagos had thereupon masterminded a plan, in which Mrs Allen and her mother had been complicit, to secure Miss Hounga's entry into the UK. It was pursuant to the plan that Miss Hounga had sworn the affidavit, drafted in terms directed by Mrs Allen's brother, in which she had asserted not only that she had been born in July 1986 (and that her birth certificate had been lost) but also that her surname was that of Mrs Allen's mother. The affidavit had led to the issue to Miss Hounga of a Nigerian passport in that name. Mrs Allen's family had then caused Miss Hounga to be driven to the British High Commission in Lagos, where she had produced a document by which Mrs Allen's mother, pretending to be Miss Hounga's grandmother, had purported to invite her to come to stay with her in England. The High Commission had thereupon given her entry clearance. Mrs Allen's brother had then purchased a ticket for her travel to England. On arrival at Heathrow on 28 January 2007 Miss Hounga had confirmed to an immigration officer that the purpose of her visit was to stay with her grandmother. Miss Hounga's passport had thereupon been indorsed with a visitor's visa, valid for six months.
The tribunal found that Miss Hounga
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(a) knew the difference between right and wrong;
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(b) knew that the assertions in her affidavit about her name and date of birth had been false;
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(c) knew that she had secured the right to enter the UK on false pretences;
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(d) knew that it was illegal for her to remain in the UK beyond 28 July 2007; and
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(e) knew that it was illegal for her to take employment in the UK.
Mrs Allen met Miss Hounga at Heathrow and took her to her home in Hanworth, Middlesex. For the next 18 months Miss Hounga acted, according to the tribunal, as a sort of au pair. She helped to care for the three small children of Mrs Allen and her husband, who at that time was also living in the home. She also did housework. She was not entirely confined to the house. She went with the family by car to the supermarket but stayed inside the car while Mrs Allen did the shopping. Occasionally she went with the family to the local park; and once they all went to Thorpe Park. She knew the whereabouts of the key to the front door and was allowed to open it to callers. Mrs Allen bought earrings and clothes for her.
But Miss Hounga was never enrolled in a school and, although she was provided with bed and board, she was never paid £50 per month or any wages at all.
It was Miss Hounga's case before the tribunal that, prior to her departure from the home on 17 July 2008, Mrs Allen had regularly treated her with violence and threats and had thereby harassed her. Miss Hounga gave a detailed account, albeit unsupported by dates, of various acts of violence...
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