In Zarkasi v Anindita,235 the Claimant, Zarkasi, who was employed from Indonesia as a living-in domestic worker, had travelled to resume her role in the UK on a false passport.
Throughout her employment in London, she was paid below the minimum wage. After completing an agreed two years’ service with the employer, she asked to return to Indonesia but the employer wanted her to stay longer. She left the employer and brought ET claims of unfair dismissal, unlawful deduction of wages and discrimination. The Respondents’
argument that the claim was tainted with illegality was accepted by the ET who dismissed the non-discrimination claims on the ground that the Claimant had come to the UK voluntarily and that she knew she was working illegally. Although the ET accepted the Claimant was trafficked into the UK and that her discrimination claim was not intrinsically linked with the illegality, but the claim was dismissed the on the ground that the discrimination was as a result of the Claimant immigration status rather than on her race. The Claimant appealed on the ground that the tribunal ought to have had regard to the provisions of the Council of Europe Convention on Action against Trafficking in Human Beings when considering the
234 [1973] 1 W.L.R. 828 235[2012] I.C.R. 788
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issue of illegality and to have held that even though the contract was unlawful it was capable of being enforced by the tribunal if the Claimant was found to be a victim of trafficking. That averment was rejected by the EAT. Held, it is clear from the judgement of the House of Lords (now Supreme Court) judgment in R. v Secretary of State for the Home Department Ex p. Brind 236 that international law does not become part of English law until implemented by Statute; and where the wording of the a statute is clear and unambiguous, the court ought to give effect to it. In this instance, the relevant statute is s.24 of the Immigration Act 1971 which preclude the Claimant from working in the UK illegally. Since the Claimant’ contract of employment was void ab initio, she was unable to rely on it. Similarly, in Hounga v Allen
& Anor [2014] UKSC 47, the Supreme Court overturned the Court of Appeal decision in Hounga v Allen & Anor [2012] EWCA Civ 609 that had held the discrimination claim by a ODWs who has worked in the UK illegally was tainted with illegality. The Claimant, Ms Hounga, was a young Nigerian national aged 15 years when she was trafficked to the UK to work as a house help. Whilst in the UK, she suffered serious physical abuse at the hand of the Respondent. Upon her dismissal, she brought a claim for unfair dismissal, unpaid wages and holiday pay, and discrimination. The ET dismissed her non-discrimination claim on the ground that the established public policy principle of illegality prevented her from relying on the illegal contract. The ET was also satisfied that the Claimant willingly participated in the immigration fraud that led to her being trafficked into the UK. Although the ET upheld her discrimination claim, that decision was overturned by the EAT 237 before it was reinstated by the Supreme court. The implication for domestic workers is that if they work without a clear authorisation such as ODWs visa, they would be taken to have worked illegally and their contract, if any, would be declared void ab initio.
236 [1991] 1 A.C. 696; [1991] 2 W.L.R. 588; [1991] 1 All E.R. 720; (1991) 3 Admin. L.R. 486
237 Allen v Hounga [2011] Eq. L.R. 569
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As obvious in the Hounga case, it would not matter even if the worker has been trafficked for domestic servitude. Nevertheless, it is notable that in Tinsley v Milligan, Lord Goff 238 mentioned the need for the Law Commission created under the Law Commissions Act 1965,
239 to review the existing laws on illegality. Thus, for long, the Law Commission that accepts the law on illegality is complex, uncertain, arbitrary and occasionally unjust, has been undertaking a long-running project into its reform.240 A report published by the Law Commission on 17th March 2010, "The Illegality Defence", which included a draft Bill, recommended a statutory reform on the aspect of the law on trust, but considered no further legislation in the areas of contract, unjust enrichment and tort. 241 Although the recommendation was rejected by the Government, the fact that the Commission recommended that judges should be allowed to deal with the issue of illegality as it affects contract and tort, not minding the doctrine of stare decisis, there is bound to be a degree of variations in the judges’ decision, which should rely on the facts in each case. In ParkingEye v Somerfield Stores Limited, Sir Robin Jacob stated:
Illegality and the law of contract is notoriously knotty territory. Etherton LJ put it this way in the most recent case on the subject to reach this court, Les Laboratoires Servier v Apotex Inc [2013] Bus LR 80, decided after the judgment below in this case, at para. 63: It is not necessary in order to resolve this appeal to undertake a comprehensive analysis of the decided cases. Such an exercise would in any event be complex, very lengthy and in large part unrewarding. The decisions inevitably turn on their own particular facts. The statements of law or principle they contain are not all consistent or easily reconciled. The jurisprudence in this area has been an evolving one, but its evolution has not followed a consistent pattern.242
238 Tinsley v Milligan [1994] 1 A.C. 340 at 364
239 1965 c.22, London: OPSI
240 See (1) The Law Commission (1999) Illegal Transactions: The Effect of Illegality on Contracts and Trusts, Consultation Paper 154, (1999); (2) The Illegality Defence in Tort (2001) Consultation Paper No 160; (3) Law Commission's Consultative Report [Law Commission, The Illegality Defence: A Consultative Report (Law Com CP 189, 2009).
241 See The Law Commission (LAW COM No 320), THE ILLEGALITY DEFENCE, HC 412, London: The Stationery Office, 16th March 2010
242 ParkingEye v Somerfield Stores Limited [2012] EWCA Civ 1338; [2013] 2 W.L.R. 939 CA (Civ Div) at 945
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In the view of Sir Robin Jacob, it is irrelevant and time wasting to perform a comprehensive review of the decided cases on illegality, because the principle they contain are confusing.
‘‘The starting point for an examination of the law in this area is the two Law Commission papers on the subject, the Consultation Paper No 189 (2009) and the final Report (2010) (Law Com No 320) entitled The Illegality Defence ’’.243 According to Sir Jacob, the Law Commission was not prepared to accept that the law on illegality was in a ‘‘straightjacket that once it was shown illegal performance of any sort was intended at the time of the making of the contract, unenforceability would follow automatically’’.244 The judge concluded that rather than surfing and aligning case laws that best support a particular position, the best way to deal with illegality cases is to go back to the basics of illegality and apply the facts on a case-by-case basis. This would require the court to look into the contract and examine if it is illegal ab initio. If the answer is yes, then the claim is barred. If the contract is legal but the performance of it is illegal, then the correct test that applies is “whether the method of performance chosen and the degree of participation in that illegal performance is such as to
‘turn the contract into an illegal contract’’.245 Accordingly, a claim should not be barred just because it contains an element of illegality. Going by this analysis, one can only conclude that the Court of Appeal decision in Hounga v Allen may have not been properly considered.
The court should have examined the extent of the illegality and the involvement of the parties in the illegality in order to arrive at a just and proportionate decision.