The doctrine of illegality and its disproportionate effects on irregular migrant workers

PART II

The Doctrine of Illegality and Contractual Claims

The Doctrine’s Application to Contractual Claims

If a contract of employment is illegal ab initio due to prohibition by statute, the doctrine is automatically triggered and no contractual claim can be made. This application of the doctrine poses a significant threat to irregular migrant workers, as their presence in the UK is illegal ab initio. For example, in Zarkasi v Anandita, a young Indonesian female entered the UK illegally using a false passport. The Employment Appeal Tribunal held she was not allowed to make a contractual claim, as “a court should not as a matter of public policy permit any party to enforce a contract that was and always has been illegal”.

Such strict implementation of the doctrine of illegality by the courts denies irregular migrant workers fundamental rights in the employment relationship. The significance of such rights is evidenced by the legislature enshrining them in statutes. For example the National Minimum Wage Act 1998 was introduced to guarantee minimum remuneration for work, beginning a direct attack on the scandal of low pay and in-work poverty which exists all too often today… [ensuring] greater decency and fairness in the workplace. Yet irregular migrant workers continue to be exploited and prohibited from making contractual claims. According to Clark and Kumarappan, “60% of migrant domestic workers had not been paid the national minimum wage”, employers claiming that there would be no reason for them to hire ‘illegals’ if they paid them the same. The reason for this is, if the employee were to complain, the illegality doctrine would completely rule out any chance of any contractual claim, giving the employer an extraordinary amount of discretion over which rights the irregular migrant worker will receive because he is subject to limited, if any, restrictions in application, as the worker has no available avenues of redress due to the illegality doctrine. In terms of the employer-employee relationship, this is quite obviously a worrying position to be in, which the courts have created through such strict application of the illegality doctrine.

Attempts at solving the problem faced by irregular migrant workers

The legislature seemingly noticed the problem and attempted to restrict this current potential exploitation of irregular migrant workers, by introducing punishments applicable to employers exploiting such powers.

The legislature introduced a number of statutory provisions, to punish employers for hiring irregular migrants, combatting this excessive power the doctrine allows them. For example, section 15 of the Immigration, Asylum and Nationality Act 2006 states:

The Secretary of State may give an employer who acts contrary to this section a notice requiring him to pay a penalty of a specified amount not exceeding the prescribed maximum”.

Therefore, if the employer employs someone who does not have valid leave to reside and/or work in the UK, he is subject to a penalty for such an action (s15(1)(a)-(b)(i)-(iii)), and any such excuse to exclude them from penalties is ruled out if the employer knew of the persons unlawfulness during employment (s15(4)).

This is relevant because the introduction of restrictions to employers could certainly have positive effects on the current situation. By sanctioning employers for hiring illegal workers, the legislation introduces a deterrent against employers and therefore taking advantage of this power the illegality doctrine grants them. Such progression in the area should be commended, as it suggests that the legislature see this exploitation of worker’s vulnerabilities as something that must be tackled, such legislation implicitly ensuring the employment rights of employees nationally are respected. However, this doesn’t help the irregular migrant workers contractually claim their rights. As Bogg (2013: 120) states:

Statutory employment rights, such as the national minimum wage…are justified as interventions that ameliorate the vulnerabilities of subordinate and economically dependant workers. Given the vulnerabilities of many migrant workers, one would have expected the impetus for the enforcement of statutory employment rights to be especially powerful. And herein is the immoral trap of the doctrine of illegality: those special vulnerabilities make it more likely that the doctrine of illegality will be triggered for migrant workers which then leads to the extinction of statutory protections”.

For irregular migrant workers to claim contractual rights, amendments need to be made. The legislature condemning and punishing the treatment of irregular migrant workers, but not actually providing any avenues of redress for them, is not going anywhere near far enough to resolve the problems of the courts current application of the doctrine.

The Doctrine of Illegality and Tortious Claims for Discrimination

After assessing the effect of the doctrine of illegality on irregular migrant worker’s basic employment rights and the bar it places on their contractual claims to these, this post will now move on to consider the doctrine’s effect on the application of tortious claims for discrimination.

Development of Discrimination legislation in the UK

Anti-discrimination legislation first began to be considered in 1965 with the Race Relations Act 1965 and since then has become an integral part of the English legal system. From this point onwards the scope of discrimination legislation expanded exponentially, with the introduction of numerous other statutes over the next 40 years, protecting people, and particularly employees, from a broad range of discriminatory actions. Most notably in relation to irregular migrant workers, the Sex Discrimination Act 1975 and the Race Relations Act 1976 were introduced, both fundamental bases for employee’s tortious discrimination claims until the early twenty-first century. However, this rapid introduction of legislation, led to it becoming extremely fractured and difficult to use and understand.

To combat this, the Equality Act 2010 was introduced, “[bringing] together over 116 separate pieces of legislation into one single Act”. The Act’s objective was that it “simplifies, strengthens and harmonises the current legislation to provide Britain with a new discrimination law which protects individuals from unfair treatment and promotes a fair and more equal society”.

The Application of the Doctrine in Hall

Nevertheless, this post argues this aim for the Equality Act 2010 is being severely limited by the current application of the illegality doctrine in relation to tortious claims for discrimination, which is unfairly treating irregular migrant workers who may suffer from discrimination in employment, due to the courts incorrect application of the threshold suggested in Hall. This case concerned a sexual discrimination claim made by a female irregular migrant worker, after she was dismissed by her employer for being pregnant. The question of law was whether or not the woman’s illegal presence in the UK would bar her claim for discrimination in tort. Peter Gibson L.J. said, for her claim to be barred there was a requirement of “a causal link between the illegality in which the claimant was implicated and the loss of which he is now complaining”, a test in line with when it was first discussed by Bingham L.J. in Saunders v Edwards, when he stated:

When the plaintiff’s action in truth arises directly ex turpi causa, he is likely to fail… where the plaintiff has suffered a genuine wrong, to which the allegedly unlawful conduct is incidental, he is likely to succeed”.

Applying this high threshold meant Ms Hall was not barred from her claim (Hall, para 80 per Mance L.J.). The creation of such a high threshold for the doctrine to bar discrimination claims represents a more sympathetic approach towards barring claims involving some sort of illegality; an optimistic sign for those irregular migrant workers who may have a tortious discrimination claim, as it seems the strict restrictions applying to contractual claims do not apply in the same manner to discriminatory claims.

The Misapplication of the Hall criteria

However, this sympathetic approach, where there had to be “quite extreme circumstances before the test will exclude a tort claim” (ibid, para 79), has been misapplied by the Court of Appeal in Vakante v Governing Body of Addey and Stanhope School (No 2), this time in relation to race discrimination. The case concerned an asylum seeker who had limited leave to remain in the UK… on condition that he did not obtain any paid employment (Pilgerstorfer & Forshaw, 2004). Mr Vakante did undertake employment at a school to get a job and was later dismissed by the school, and Mr Vakante made a complaint of racial discrimination. In Court, Mummery L.J. stated, “to permit the claim was to appear to condone the claimant’s illegality” (Bogg & Novitz 2013: 2), therefore barring the claim, defining it as a simple application of the Hall test. But, this post suggests, agreeing with Bogg and Novitz (ibid), “there was a loosening of this test in Vakante” here, due to Mummery L.J.’s interpretation being:

The test does not restrict the tribunal to a causation question. Matters of fact and degree have to be considered: the circumstances surrounding the applicant’s claim and the illegal conduct, the nature and seriousness of the illegal conduct, the extent of the applicant’s involvement in it and the character of the applicant’s claim”.

Although this could possibly be justified in Vakante, as his lies could have possibly constituted necessary causation in Hall, Mummery L.J. has not only effected the application of Hall in this case alone, as “the root of Rimer L.J.’s flawed approach in Hounga was to interpret and apply Hall through the distorting lens of Vakante” (Bogg & Novitz 2013: 2). This case concerned a 14-year-old Ms Hounga who misrepresented herself to gain a passport and visa, using it to come to England and work for Mrs Allen for a wage, accommodation and access to education. However, Ms Hounga did not receive wages, or access to education, was physically abused by Mrs Allen and subsequently was dismissed. One claim Ms Hounga brought was in relation to tortious racial discrimination. Rimer L.J. used a number of phrases such as “closely connected when describing the link required between the illegality and the claim by the claimant, a significant relaxation of the ‘necessary causation’ link actually required in Hall.

The distorted application of the causal link requirement set in Hall by the Court of Appeal in Vakante and Hounga, has left us in a position where it can be inferred that, because a claimant is residing and working in the UK illegally, a defendant may not be punished for discriminating against them, due to the original test being made easier for employers to satisfy.

The problem with this result is that the right not to be discriminated against is a human right globally recognised. Human rights are “rights one has simply because one is human” (Donnelly 2013: 19) by definition, yet the current application of the illegality doctrine to tortious claims for discrimination completely contradicts this. The loosening of the threshold discussed above does not necessarily mean all irregular migrant workers will be barred from following their claim; nevertheless as the examples above show, it can have that effect. This post argues it is extremely detrimental to subject irregular migrant workers to such draconian restrictions, when we have the aim of achieving equality as a liberal democracy, as well as detrimental to these irregular migrant workers who are being harshly punished for their illegal residence and employment.

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