Most of us would be pretty confident that, if we were discriminated against at work because of Race, Sex, Disability, Religious Belief, Age or Sexual Orientation, we could make a complaint. And, quite possibly, obtain redress for this kind of mistreatment. But what if there is a problem with our contract of employment? Could we still take the same action?
In fact, we don’t need a contract of any kind to be in place to make a claim for discrimination, because the basis for making a discrimination claim is set out in legislation. We all therefore have the right to bring a claim for any act of potential Discrimination in the Workplace or outside. Or do we?
In a recent case between an employer and an illegally employed worker (Hounga v Allen) the employee - a vulnerable woman who had gone along with her employer’s plan to obtain illegal entry into the UK under false pretences - was denied the right to bring a claim of race discrimination following her appalling treatment by her employers while working in the UK. The court of appeal ruled that where the employment situation is “unlawful from top to bottom and beginning to end”, the courts will have little sympathy with a discrimination claim, even one which does not rely on a contract of employment, because this would effectively condone the illegality under which the claim is brought.
This may seem logical, if your main concern is punishing illegal immigrants. But if you are concerned with fairness and access to justice, this decision suggests that not all are equal under the law. If any immigrant who has entered illegally – even if they have been trafficked against their will, for instance – is unable to claim for discrimination and mistreatment, their tormentors can go unchecked. That is when discrimination is not discrimination.
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By Sara Rumberg, Employment Law Expert.