The rejection of race discrimination claims brought by a young Nigerian woman who was brought in illegally by her employers, brutalised and denied wages, gives a green light to racism.
MH was probably only 14 when her employer brought her from Nigeria to work in the UK as an au pair, promising to send her to school and to pay her £50 a month on top of her board and lodging. She was told to say that she was 20 and that she was coming to visit her grandmother. Once here, she was beaten, never paid any wages and not given the opportunity to go to school. Eventually she was thrown out of the house. The employment tribunal to which, helped by North Kensington Law Centre, she applied, found as a fact that her vulnerability, as a foreigner working illegally on a visitor’s visa, allowed her employer to treat her worse than a British citizen would be treated, and upheld her claim of race discrimination, although it rejected her claims of unfair dismissal and breaches of contract because of her illegal status.
But the Court of Appeal allowed the employer’s appeal, on the basis that MH was a willing party to the illegal work. The judges described the 14 year old’s involvement as that of an equal party, effectively saying she knew what she was doing and could not complain if it all went wrong.
The judges’ decision was based on the old common-law idea that no-one should be allowed to take advantage of their own illegal acts. But their application of the doctrine to cases like MH’s turns it on its head, allowing those who bring unauthorised workers in to the country and exploit their illegal status to profit from their own wrongdoing, in the process legitimising the super-exploitation of the most vulnerable.
Decisions like these reinforce racism both directly and indirectly: directly, through their message that undocumented workers can’t have and don’t deserve basic rights and protections, and indirectly, through actively colluding in the undercutting of wages and conditions which causes resentment among British workers.