Appeal No. UKEAT/0326/10/LA
UKEAT/0327/10/LA
UKEAT/0328/10/LA
UKEAT/0329/10/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 March 2011
Judgment handed down on 31 March 2011

Before
THE HONOURABLE MR JUSTICE SILBER
MR K EDMONDSON JP
MRS M V McARTHUR BA FCIPD

UKEAT/0326/10/LA

MRS ADENIKE ALLEN (NEE ABOYADE-COLE)	APPELLANT

MISS M HOUNGA	FIRST RESPONDENT
MR KUNLE ALLEN (DEBARRED)	SECOND RESPONDENT

UKEAT/0327/10/LA – UKEAT/0329/10/LA

MISS M HOUNGA	APPELLANT

MRS ADENIKE ALLEN (NEE ABOYADE-COLE)	FIRST RESPONDENT
MR KUNLE ALLEN (DEBARRED)	SECOND RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For Miss M Hounga	MR MICHAEL REED
(Representative)
Free Representation Unit	
For Mrs Adenike Allen (nee Aboyade-Cole)

	MISS LAURA PRINCE 
(of Counsel)
Instructed by:
Messrs Crowthers Solicitors 
14 Greville Street 
London
EC1N 8SB	
Mr Kunle Allen was debarred from participating in the appeal	

SUMMARY
JURISDICTIONAL POINTS – Fraud and illegality

The Claimant brought claims for unfair dismissal, breach of contract, unpaid wages and unpaid holiday pay as well as racial discrimination arising out of her employment and her dismissal by the Respondents.  

The Claimant had been engaged in Nigeria to come to the United Kingdom to work as a domestic servant for the Respondents.  In order to come to this country the Claimant at the instigation of the First Respondent made an affidavit which contained many material inaccuracies such as stating that her surname was the same as that of the First Respondent, explaining that she had received a letter of invitation to visit the United Kingdom from the mother of the First Respondent and that she had described that lady as her grandmother.  

The Claimant was party to this dishonesty.  She received a six-month visa to come to England as a visitor but after its expiry in July 2007, she remained in the country illegally.  The Claimant was subjected to harsh treatment by the First Respondent and was dismissed in unacceptable circumstances. 

The Employment Tribunal held that:-

(a)	That the contract of employment between the Claimant and the Respondents was tainted with illegality and she therefore could not bring claims for unfair dismissal, breach of contract, unpaid wages and holiday pay;

(b)	The unlawful race discrimination claim of the Claimant succeeded;

(c)	The other racial discrimination claims of the Claimant other than relating to dismissal should have been, but were not the subject of a grievance procedure and so the employment Tribunal had no jurisdiction; 

(d)	The Claimant was not entitled to an award of loss of earnings following her dismissal; and

(e)	The Claimant was entitled to compensation of £6,000 for injury to feelings together with some interest.

The Claimant appealed against (a), (c), (d) and (e) and the First Respondent cross-appealed against (b). 

The Second Respondent was debarred from taking part in the appeal.

Held: Dismissing the appeal and the cross-appeal as: -

(a)	This was an illegal contract, the claims for unfair dismissal, breach of contract, unpaid wages and holiday pay could not be enforced (Enfield Technical Services v. Payne [2008] ICR 30 and [2008] ICR 1423 applied);

(b)	The discriminatory dismissal illegality issue could proceed because the claim was not inextricably bound up or linked with the illegal conduct (Hall v Woolston Hall Leisure Ltd [2001] ICR 99 applied); 

(c)	The Claimant had failed to comply with the compulsory grievance procedures and was also unable to take advantage of any of the exceptions with the result that the non-dismissal racial discrimination claims failed; and

(d)	The Claimant was not entitled to an award for loss of earnings as she was not allowed to work in this country; and

(e)	There was no error of law in the award of damages for injury to feelings.

THE HONOURABLE MR JUSTICE SILBER
Introduction
1.	On 22 December 2008, Miss Mary Hounga (“the Claimant”) brought proceedings against Mrs Adenike Aboyade-Cole who is also known as Mrs Allen (“the First Respondent”) and her husband Mr Kunle Allen (“the Second Respondent”) alleging that the Claimant first had been unfairly dismissed; second had been discriminated against on grounds of her race; and third had suffered an unlawful deduction of wages as well as not having received itemised pay slips, written terms of conditions of employment and holiday pay.  By a decision of the Employment Tribunal dated 31 July 2009 (“the liability decision”), the Employment Tribunal held that:-
(a)	The contract of employment between the Claimant and the Respondents was tainted with illegality as the Claimant knew she was not legally allowed to work in this country with the result that her claims for unfair dismissal, breach of contract, unpaid wages and holiday pay failed; 
(b)	For the purposes of the Race Relations Act 1976, the Claimant was “in employment” and her dismissal was an act of unlawful race discrimination (“the race discrimination-employment claim”); and
(c)	The racial discrimination claims of the Claimant other than those relating to dismissal should have been but which were not the subject of a grievance procedure and so the Employment Tribunal could not hear them (“the race discrimination – dismissal claim”).

2.	The Claimant appeals against findings (a) and (c) while the Respondents cross-appealed against (b).

3.	The Claimant also then sought to review finding (c) in the liability decision on the basis the Employment Tribunal had not heard submissions on the statutory dispute grievance procedure and had not considered relevant exceptions to the need for a written grievance.  Those criticisms are no longer pursued as a review hearing took place and by a decision made on 31 March 2010 (“the review decision”), the Tribunal heard and reviewed the application and upheld its original finding (c), which was that the grievance procedure in respect of the non-dismissal acts of racial discrimination had not been complied with the result that the Claimant could not pursue them.  The review decision is the subject of an appeal by the Claimant.

4.	By a further decision of the Employment Tribunal made on 16 April 2010 dealing with remedies in respect of the racially discrimination dismissal (“the remedies decision”), the Tribunal held (d) that the Claimant was entitled to compensation of £6,000 for injury to feelings together with some interest but (e) the Claimant was not entitled to an award of loss of earnings following her dismissal.

5.	The Claimant also appeals in respect of findings (d) and (e).  The Second Respondent has been debarred from taking any further part in the appeal but the First Respondent has been represented by Miss Laura Prince of counsel while the Claimant has been represented by Mr Michael Reed.  We are grateful for their oral and written submissions and for adopting a sensible approach to the problems with the Reasons to which we will have to return in Section IX below.

The Facts as Found by the Employment Tribunal
How the Claimant came to England
6.	The Employment Tribunal rightly described this case as “probably one of the saddest case that has come before this Tribunal”.  The background is that the Respondents are husband and wife with the First Respondent being both British and Nigerian.  At the relevant time, they were residing in a house in Hamsworth.

7.	The Claimant is a young person who told the Employment Tribunal that her birth date was 28 February 1993 although for the purpose of obtaining a passport she said in an affidavit made before the High Court of Nigeria that her birth date was 28 July 1968.  There is great dispute about other aspects of the Claimant as she said that she has no close relatives and is an orphan while the evidence of the First Respondent was that the Claimant’s parents are alive and are living in Benin.

8.	There are a number of very serious allegations that have been made about the behaviour of the First Respondent to the Claimant.  These are strongly disputed and, as I will explain, the Employment Tribunal has made adverse findings on the integrity of both of them.

9.	The Employment Tribunal reached various conclusions on how it was that the Claimant came to this country.  It found that it was the wish of the Claimant to visit the United Kingdom having worked for the Aboyade-Cole family in Nigeria and got on very well with the First Respondent’s mother.  When the Claimant was offered the opportunity to come to England to look after the children of the First Respondent, she expressed a wish to do so particularly as she was promised that it would give her the opportunity of schooling, that the family would pay for her trip and that she would be given £50 a month.  In order to facilitate her admission to the United Kingdom, the Claimant made an affidavit in the name of Adeyinka Mary Aboyade-Cole in which she explained incorrectly that she had received a letter of invitation to visit the United Kingdom for a holiday from Mrs Elisabeth Aboyade-Cole, who is the mother of the First Respondent and who incorrectly was said to be her grandmother.  The Employment Tribunal did not believe that the Claimant on her own could have known how to go about changing her name, applying for a passport and visa or obtaining an airplane ticket to enable her to come to the United Kingdom.  The Employment Tribunal had no doubt that the plan was masterminded by the Aboyade-Cole family in Lagos with the Claimant complying with what was suggested and doing what she was told to do.  The Employment Tribunal found that the First Respondent and her mother knew what was happening.

10.	According to the Employment Tribunal, the arrangement was that the Claimant would come to England to live with the Respondents as part of their family and to help out in the house.  The Claimant had to look after the children, do some housework in exchange for her pay of £50 a month as well as receiving board and lodging and she would be able to attend a school or college.

11.	The Tribunal also found [19] that the parties in this case (although not the Second Respondent) agreed to a course of dishonest conduct to enable the Claimant to obtain first travel documents and second the appropriate visa to gain entry to this country from Nigeria so that she could live with the Respondents.  The Employment Tribunal found that as part of that process, the Claimant swore a solemn declaration before the High Court of Nigeria stating falsely that she was Adeyinka Mary Aboyade-Cole so that a passport would be issued in her name with a visa being obtained from the British Embassy in Nigeria.  The Claimant, according to the Employment Tribunal, attended in person at the Embassy accompanied by the driver of the Nigerian family and the Claimant confirmed that she incorrectly told the Embassy officials that the purpose of the visit was to enable her to visit the United Kingdom for a holiday to see her grandmother.  The Employment Tribunal found that the Claimant knew that it was untrue as she was not visiting this country for a holiday and she also had no grandmother in the United Kingdom to visit.  The Claimant confirmed to the Tribunal at the remedies hearing that had she not told these lies and thus not obtained the visa to enter the United Kingdom, she would have stayed in Nigeria.  Significantly she accepted that had she told the truth, she would not have been granted a visa and so she would not have been allowed to come to the United Kingdom.

12.	According to the Employment Tribunal, the Claimant was well aware of her immigration status when she arrived in this country and if not then, shortly after her arrival and also that after the expiration of her visitor’s visa at about the end of July 2007, which was six months after entry, she would then be remaining in this country illegally.  This gave the Respondents power and control of the Claimant by threatening that if she was noticed by the authorities she would be likely to be imprisoned (paragraph 37 page11).

13.	The Employment Tribunal also found that the Claimant went along willingly with the arrangements necessary to bring her to the United Kingdom, that she wanted to come, especially as she wanted the opportunity to attend school.  It also stated that the Claimant, as a Christian who attended church regularly would have known the difference between right and wrong.

14.	Significantly the Employment Tribunal found in respect of the Claimant that:-

“She knew the arrangements which were made whereby she had to pretend to be a relative, had to use a name other than her own name and that she had to falsify where she was born and her date of birth so must have known that the arrangements were dishonest”.

15.	The Claimant arrived in the United Kingdom on 27 January 2007 where she was met at London Heathrow Airport by the First Respondent who took her to the home of the Respondents.  She was apprehensive and excited about coming to England but her excitement was because she had been promised to be able to go to school in England, which was something that she had not been able to do previously.

16.	The Respondents have three children, girls aged 5 and 4 and a boy of 3.  The task of the Claimant was to look after the children, feed, clean and dress them as well as cleaning the house and washing the dishes and preparing the children’s meals.  The Claimant did not usually cook for the Respondents.

17.	The evidence was that the Claimant performed a function similar to that of an au pair in that she was part of the family, that she would go in the car to the supermarket but that she would stay in the car with the children while the First Respondent went shopping.  The evidence was that she also went with the family to the park on occasions and that she was also given earrings and some clothes bought for her by the First Respondent as well as receiving clothes from the aunt of the First Respondent.

18.	Unfortunately, the relationship between the First and Second Respondent was not happy and by 14 March 2007, there was an altercation following the 40th birthday party of the Second Respondent, which led to the police being called and the Second Respondent spending some time in custody on remand.  The First and Second Respondents are now estranged and as we have explained, the Second Respondent has been debarred from taking any part in these proceedings.

19.	The Employment Tribunal found that the Claimant lived with the Respondents from 28 January 2007 until 17 July 2008 and it accepted her evidence that during her stay with the Respondents, the Claimant suffered serious physical abuse from the First Respondent although the Employment Tribunal considered that the Claimant had on occasions when giving her evidence exaggerated the extent of the abuse.  The Claimant’s allegations were that during the period when she lived with the family, the First Respondent had regularly hit her, slapped her on the face and other parts of her body as well as pulling her ears and her hair.  The evidence of the Claimant was that the First Respondent would pinch her arm, put her hand round the front of the Claimant’s neck making it difficult for her to breathe and that she would break her skin with the nails of the First Respondent as well as pushing her onto the floor and kicking her stomach and head.  In addition, the Claimant contends that the First Respondent would bang her head against a wall and say that the Claimant was “an animal”.

20.	Evidence was given by the Claimant that on one occasion, the First Respondent threatened her with a knife pushing her onto the floor and saying “I’m going to finish you today”.  This was when the First Respondent was angry with the Claimant because apparently her children had been eating biscuits leaving a mess on the floor which the Claimant had not cleaned up.  The case for the Claimant was that on that occasion, the First Respondent had kicked the Claimant in the stomach and breasts.  She alleged also that she was sometimes hit with a wooden spoon with the First Respondent saying things such as “Mary I tell you I’m going to kill you and I will hide you in the garden and no one will know or be able to find you”.

21.	These allegations were denied by the First Respondent and the Claimant was not surprisingly unable to give details as to when they occurred.  The First Respondent reminded the Claimant that if she left the house and she was found by the police, they would capture her, detain her and then send her to prison, as she was not legally allowed to remain in the country.

22.	The only relevant finding of the Employment Tribunal was that they accepted the Claimant’s evidence that during her stay with the Respondents, she suffered serious physical abuse from the First Respondent.

The dismissal
23.	As we have explained on 17 July 2008, the Claimant was dismissed and thereafter she ceased to live with the Respondents.  On that day, the Claimant had been told to give the Respondents’ children pizza for dinner but then they refused to eat it wanting noodles instead.  When the Claimant refused to give the children noodles, they complained to their father who told the Claimant to make them noodles if the children wanted it.  When the First Respondent returned home, she saw the pizza and asked why it was left and when the Claimant explained that the children had not wanted it, the First Respondent then became angry smacking and hitting the Claimant.

24.	Later after the Second Respondent had gone to work, the Claimant was told by the First Respondent to make rice for the children but when the children were not swallowing but merely keeping it in their mouths, the First Respondent complained to the Claimant.  The First Respondent was still angry after the Claimant had put the children to bed whereupon she attacked and beat the Claimant throwing her out of the house as well as throwing water over her during this altercation.  The First Respondent discovered a note of the telephone number of the First Respondent which the Claimant kept in her pocket in case she was ever thrown out of the house.  Later when the Second Respondent returned home, the Claimant was let back into the house and the Second Respondent asked the Claimant why she was so wet and when the Claimant said that it was a result of the activities of the First Respondent, the First Respondent became angry saying the Claimant was trying to get her into trouble.

25.	At that time, the First Respondent accused the Claimant of having informed the police that the Second Respondent had hit the First Respondent thereby causing the Second Respondent to become angry with the Claimant saying that the First Respondent could do what she liked.  The First Respondent then opened the front door telling the Claimant to leave the house and die before physically pushing her out of the house.  At that point, the Claimant only had on light clothes but she slept in the garden and at 7am the following morning, she attempted to get back into the house but nobody would open the door for her.  The Claimant was frightened and wet from wearing wet clothes and being outside all night.  She wandered around to be found eventually in a car park of a Sainsbury’s supermarket by a Dr Cummings, who took her into the care of social services.

26.	According to the Tribunal at the remedies hearing [20], the Claimant was extremely concerned at what might happen to her as she knew that after six months of her arrival, she was in this country unlawfully and the Tribunal could understand her fear of the police and the authorities.  That, according to the Employment Tribunal, explains the Claimant’s concern when she was approached by Dr Cummings when he first saw her in a distressed state in the car park.  The social workers put the Claimant into care providing her with accommodation.

The Issues
27.	The issues that have to be considered are:-
(a)	Whether the arrangement between the Claimant and the Respondents was illegal and, if so whether the Claimant could not pursue her claims for unfair dismissal, breach of contract, unpaid wages and holiday pay (“The Contract Illegality Issue”);
(b)	Whether the dismissal of the Claimant was an act of unlawful racial discrimination; (“The Discrimination Dismissal Illegality Issue”);
(c)	Whether any claim for racial discrimination by the Claimant relating to matters arising before her dismissal is barred because she did not use the grievance procedure (“The Grievance Procedure Issue”);
(d)	Whether the Employment Tribunal was correct to refuse to allow the Claimant compensation for loss of earnings for racial discrimination (“The Wages Claim”); and
(e)	Whether the Employment Tribunal awarded the correct sum for injury to feelings or whether it was too low as is contended by the Claimant (“The Injuries to Feelings Claim”).

28.	We will deal with each issue in turn.

The Contract Illegality Issue
29.	The Employment Tribunal made a number of findings in respect of illegality to which I have referred.  In particular it was explained by the Tribunal in the remedies decision, that the parties in this case (not the Second Respondent) “agreed to a course of dishonest conduct to enable the claimant to obtain travel documents and subsequently the appropriate visa to gain entry into this country from Nigeria so that she could live with the respondents”.  Such conduct included the Claimant pretending to be a relative of the Respondent, using a name other than her own name, as well and falsifying where she was born and her date of birth.  The Employment Tribunal also found that the Claimant knew at the time she came to this country or shortly thereafter that her permission to enter the country was for only six months as a visitor.

30.	All these facts would have been known to the First Respondent and the issue that therefore arises is whether this precludes the Claimant pursuing her non-discrimination claims.

31.	The approach of the Tribunal was as stated at paragraph 49 of the liabilities decision as follows:-

“The Tribunal are satisfied that the claimant did know and understand that she did not have the right to work in this country and we find that as the contract was illegal she is not entitled to benefit therefore cannot bring her claim of unfair dismissal or any claims which arise under a contract of employment”.

32.	It is common ground between the parties that the correct approach to illegality of a contractual claim was explained by this Appeal Tribunal in Enfield Technical Services v. Payne [2008] ICR 30 in a decision affirmed by the Court of Appeal (2008) ICR 1423.  Elias J explained in a passage of the judgment (which was approved subsequently by the Court of Appeal) that there are three categories of cases where a contract may be tainted with illegality and which were identified by Peter Gibson LJ in his seminal judgment in Hall v Woolston Hall Leisure Ltd [2001] ICR 99 [30]-[31].  They were described by Elias J in this way: -

“26.. (3) ..The first is where the contract is entered into with the intention of permitting an illegal act.  The second is where the contract is expressly or impliedly prohibited by statute.  The third is where the contract was lawful when made but has been illegally performed, and the party seeking the assistance of the court knowingly participated in the illegal performance. 
(4) In order to fall within this third category, it is traditionally said there are two requirements.  There must be a knowledge of the illegal performance and participation.. 
(5) Implicit in the analysis of Peter Gibson LJ is of course a third requirement, namely that the performance must be illegal.  It must be a form of illegality which properly attracts the operation of the doctrine.
(6) The concept of knowledge requires the employee must have knowledge of the fact which render the performance illegal.. however it is irrelevant where the party appreciates what he is doing is illegal.  Ignorance of the law is no excuse this has been reiterated on many occasions.. 
(7) The concept of participation requires some active participation.  There are cases in which the courts have held that mere knowledge of the illegality coupled with the failing to do something about it can constitute participation..”

33.	The First Respondent contends that this case falls into the first category as being a contract entered into with the intention of committing an illegal act while the Claimant contends that this case falls within the third category.  We consider that this case could not fall in the first category as it was not a contract permitting an illegal act as the agreement was for the Claimant to act as a domestic servant.  Our inclination is that this case falls in the third category but it does not matter into which category it falls, because even if this case fell within the third category, we are quite satisfied that there was knowledge of the illegal performance and participation because, as we have already explained the Claimant knew that she made untrue statements because she had no grandmother in the United Kingdom to visit, she was not visiting for a holiday and that she only did this in order to obtain an entry visa.  The Employment Tribunal also found that the Claimant knew that she did not have the right to work in this country.  It has not been suggested that the First Respondent did not know of the illegality.  Both the Claimant and the First Respondent participated in the illegality and thus the requirements of the third condition are satisfied.

34.	Mr Michael Reed contends that this was an unusual case and that the Claimant’s circumstances and vulnerability mean there was a question of whether she could be considered to be an active participant notwithstanding her state of knowledge.

35.	We cannot accept this submission because there was sufficient evidence of participation by the Claimant making the false affidavit, by obtaining the visa dishonestly and by working in this country when not allowed to do so.

36.	There is no doubt that the illegal scheme was instigated by the First Respondent and her mother and therefore it might be thought that it would be unfair for the Respondents to rely on and benefit from their own illegality.  Such an approach fails to appreciate the nature and rationale of the defence of illegality, which was described by Lord Goff in Tinsley v Milligan [1994] 1 AC 340, 355 as being: -

“..not a principle of justice: it is a principle of policy whose application is indiscriminate and can lead to unfair consequences as between the parties’ litigation.  Moreover the principle allows no room for the exercise of any discretion by the courts in favour of one party or the other”.

37.	The matter was put clearly by May J in Newland v Simons & Willer (Hairdressers) Ltd [1981] ICR 521 at 532 when he explained that “the courts exist to enforce the law, not to enforce illegality”. We are quite satisfied that to allow this aspect of the appeal and to enable the Claimant to recover would be to enforce the illegality because the Claimant participated in and benefited from the illegality as it enabled her to come to this country.  This aspect of the appeal fails.

The Discriminatory Dismissal Illegality Issue
38.	The approach of the Employment Tribunal was that:-

“53. There was no valid reason given by the first respondent for the termination of the claimant’s employment we find that the Respondent dismissed the claimant and ill-treated her because of her status: she had no rights.  We find that the respondents would not have dismissed a hypothetical comparator i.e. a British based person working for the respondents and we find the claimant’s dismissal an act of unlawful direct race discrimination.”

39.	The First Respondent appeals against that conclusion contending that the Employment Tribunal did not apply the principles on the leading cases.  Indeed it is correct that the Tribunal stated that its intention had been drawn to some of the leading authorities but regrettably they did not then explain how, if at all, they applied them.

40.	Miss Prince on behalf of the First Respondent submits that claims for racial discrimination could not be brought for the same reasons as claims could not be brought for unfair dismissal on account of the illegality of the parties in the sense that they fell within either the first or the third category of the type identified in the Hall case to which reference has been made in paragraph 32 above.

41.	In response the case for the Claimant is, as was explained by the Court of Appeal in Hall v Woolston Hall Leisure Ltd (supra) that the correct approach for dealing with illegality in discrimination cases is that the claim is a form of statutory tort and so not based on the contract of employment itself.

42.	We consider that the correct test for dealing with illegality in discrimination cases, is the tortious approach which Peter Gibson LJ described in a sex discrimination case as being: -

“42.. To consider whether the applicant’s claim arises out of or is so closely connected or inextricably bound up or linked with the illegal conduct of the applicant that the court could not permit the applicant to recover compensation without appearing to condone that conduct”.

43.	A similar approach was adopted by Mance LJ in the same case when he said that: -

“79. While the underlying test therefore remains 1 a public policy, the test evolved in this court for its application in a tortious context thus requires an inextricable link between the facts giving rise to the claim and the illegality, before any question arises out of the court refusing relief on the grounds of illegality.  In practice, as is evident, it requires quite extreme circumstance before the test will exclude a tort claim.”

44.	It has not been suggested that the law applicable to illegality in race discrimination claims, such as the one brought by the Claimant, should be different from the law which applies in sex discrimination cases such as Hall.  We consider that the same principles apply as there is no reason why there should be any differences.

45.	The Respondent seeks to derive assistance from the case of Vakante v Governing Body of Addey and Stanhope School [2005] ICR 231 which was a case of race discrimination in which an asylum seeker obtained employment in breach of the condition of leave to remain.  When he was dismissed, the employee made a claim of unlawful racial discrimination in which it was held by the Employment Tribunal that the complaint of discrimination was held to be inextricably linked with his illegal conduct with the result that the applicant was prevented from pursuing his claim for race discrimination because of illegality. That decision was upheld by the Court of Appeal.  The reasoning in the judgment of Mummery LJ with whom Lord Slynn and Brooke LJ agreed was that:-

“35. The applicant was solely responsible for his illegal contract in working for the employer and creating an unlawful situation, on which he had to rely in order to establish that there was a duty not to discriminate against him”.

46.	In our view, that was a fact-sensitive decision which does not establish that if an employee does not have the legal right to work in the United Kingdom he or she cannot bring a discrimination claim.  Indeed the approach of Mummery LJ, was very different because having endorsed the tests set out by Peter Gibson in the Hall case, he then explained that: -

“8. The strength of the Hall approach is that it is flexible. It enables the tribunal to avoid arbitrary and disproportionate outcomes and to reach sensible and just decisions in most cases. The proper application of the test should produce reasonably consistent and predictable results, more so, I am inclined to think, than would be the case if, in cases of illegal conduct involving the applicant, the tribunal were given a general statutory discretion, constrained by specific limiting factors. 
9. Although Hall’s case [2001] ICR 99 uses some of the familiar language of legal and factual causation ("connection", "link"), 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 are all matters relevant to determining whether the claim is so "inextricably bound up with” the applicant's illegal conduct that, by permitting the applicant to recover compensation, the tribunal might appear to condone the illegality.”

47.	Miss Prince seeks to derive assistance from the decision in Vakante because that claim for race discrimination was dismissed on grounds of illegality but the facts in that case are very different from this case.  In that case, the employer was totally innocent and he did not know that the employee was not entitled to enter employment at all, either with the employer or with anyone else without a permit.  Further the employee had made a false statement and:-

“The applicant was solely responsible for his illegal contract in working for the employer and creating an unlawful situation on which he had to rely in order to establish there was a duty not to discriminate against him”.

48.	The differences between the Vakante case and the present one are clear because in this case, the focus has to be on the Respondent’s conduct in dismissing and evicting the Claimant.  Such conduct of the First Respondent is not connected with or inextricably linked with the illegal conduct by which the Claimant entered this country and worked here.  The Claimant’s position as a servant of the Respondent working and living illegally in this country was not inextricably linked with the act of eviction or dismissal.  In any event applying Mummery LJ’s approach, the Claimant’s involvement in the illegality was much less than that of the Respondent.   We have come to the conclusion that the Employment Tribunal were entitled to take the view that this case does not fall within what Mance LJ considered to be “quite extreme circumstances before the test will exclude a tort claim”.  Indeed by allowing the Claimant to recover compensation for this claim, the Employment Tribunal would not in Peter Gibson LJ’s words in the Hall case be “appearing to condone “the illegal conduct of the Claimant.  We have come to the conclusion that the Employment Tribunal was entitled to uphold this claim and so we reject this ground of appeal.

The Grievance Procedure Issue
(i) Introduction
49.	The Claimant brought claims for unlawful deduction of wages and direct discrimination during the course of her employment.  These claims were dismissed by the Employment Tribunal on the basis that the Claimant had failed to send a written grievance to the Respondents as required by the Employment Act 2002 (Dispute Resolutions) 2004 (“the 2004 regulations”).  This matter was ultimately considered at the review hearing at which the Claimant accepted that the grievance regime applied to her non-dismissal claims and that she had not sent a written grievance.  It was common ground that unless an exception to the grievance procedures applied, then the Employment Tribunal was right to dismiss these claims of the Claimant.

50.	The case for the Claimant was that she was entitled to rely on exceptions which preclude the requirement to send a written grievance because either it was not “reasonably practicable” for her to do so and/or she had been subjected to harassment and had reasonable grounds to believe that going through the grievance procedure would result in further harassment.  We will deal with each of these contentions in turn.

(ii) The reasonably practicable defence
51.	The Claimant contends that she can rely on section 6 of the 2004 regulations which provides in so far as is material that:-

“(4) Neither of the grievance procedures applies where-
(a) the employee has ceased to be employed by the employer;
(b) neither procedure has been commenced; and
(c) since the employee ceased to be employed it has ceased to be reasonably practicable to comply with paragraph 6 and/or 9 of Schedule 2 (which are the obligations that set out the grievance in writing and send it to the employer).”

52.	The Employment Tribunal stated in paragraph 12 of its reasons that:-

“12. initially it was not reasonably practicable [to lodge a grievance] because the Claimant did not know the address of the Respondent but that was the case up to 11 March 2009 but as of 11 March 2009 the Claimant and her advisors knew the Respondent’s address.  In our opinion what should have happened was that the Claimant should then have raised the grievance, it would have been out of time but the Claimant could have sought leave of the Tribunal to raise the grievance out of time and pleaded in aid the fact that had been stated in the application namely that the Claimant was unaware of the Respondent’s address and that was the reason for late submission of a late grievance [13].  
So we do not accept that it was not reasonably practicable to have presented a grievance prior to submission of the ET1 on 18 March 2009 as the address was known to the Claimant was advised by a Law Centre which was versed in Employment law.”

53.	The Claimant challenges the conclusion that if it was not reasonably practicable to have submitted the grievance immediately after the dismissal or for nearly eight months, that it then became practicable.  The case for the Claimant is that the wording of regulation 6(4) does not anticipate the disapplication might later be reversed so that once the criteria had been met, the grievance procedure ceased to apply and that it could not be reinstated.

54.	We are unable to accept the submission which would have the surprising consequence that if it had not been reasonably practicable to make the grievance for say the first two days of the period because of ill-health of a party, then it would follow that that would absolve the party thereafter from complying with the obligation.  No authority or cogent reason has been put forward to suggest that that is the case and indeed Miss Prince has shown that there is a highly persuasive contrary authority.

55.	Thus in Shultz v Esso Petroleum Ltd [1999] ICR 1202, the issue was the circumstances in which the period for presenting a claim in an unfair dismissal case would be extended “if it was not reasonably practicable for the complaint to be presented before the end of that period of three months” (s111 (2) ERA 1996).  The Court of Appeal held that because the complaints could not have been presented during the first weeks of the limitation period, then it did not exempt the ill party from the obligation to present it during the rest of the period of three months because as was explained by Potter LJ giving the only reasoned judgment in the Court of Appeal when he said at page 1210: -

“In assessing whether or not something could or should have been done within the limitation period, while looking at the period as a whole, attention will in the ordinary way, focus upon the closing rather than the early stages.  This seems to me to be so where the test to be applied is that of reasonableness or, as here, reasonable practicability.”

56.	We consider that similar reasoning applies to support the Respondents’ case.  Thus the Employment Tribunal was entitled to conclude that it was reasonably practicable to have prevented the grievance between 11 and 18 March 2009 when the ET1 was submitted so we reject the Claimant’s complaint.

(iii) Harassment
57.	Regulation 11 of the 2004 Regulations provides that:-

“(1) where the circumstances specified in (3) apply and in consequence the employer or employee does not commence the procedure that would otherwise be the applicable statutory procedure the procedure does not apply;
(2) ….
(3) The circumstances referred to in paragraphs (1) and (2) are that –
(a) …
(b) The party has been subjected to harassment and has reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would result in his being subject to further harassment...”

58.	The Employment Tribunal said that:-

“As of 11 March 2009 the claimant was no longer in the workplace situation, she was assisted by and protected by a social worker, assisted by a very able representative from North Kensington Law Centre.  The grievance could have been conducted under the modified procedure so there were no grounds for the Claimant to believe that commencing the procedure or complying with subsequent requirements would result in her being subjected to further harassment and in fact continuing the grievance in the modified form was no different from presenting a claim to an Employment Tribunal.”

59.	For those reasons, the Employment Tribunal held that the Claimant could not rely on that exception.  The case for the Claimant is that regulation 11 rather like regulation 6(4) cannot be reversed so that once there was harassment that was determinative and after the end of the period of harassment had finished, the Claimant was under no obligation to invoke the grievance procedure.

60.	We are unable to agree because for the same reason as we have explained in respect of regulation 6(4), the 11(3) exemption only applies for as long as the harassment continues. So therefore in the period between 11 March 2009 and 18 March 2009 the harassment had ceased and the Claimant could and should have invoked the grievance procedure.  The Employment Tribunal was entitled to reach this conclusion and thus this ground of appeal also fails.

The Wages Claim
61.	In respect of the claim for loss of earnings arising from racial discrimination in respect of the dismissal of the Claimant, the Employment Tribunal refused to make an award and it explained that:-

“So far as losses which the claimant claims for future wages and wages up to the date of the Tribunal (sic) we cannot see how such some can be awarded the claimant has never had the right to work in this country the claimant well knew she never had the right to work in this country and indeed well knew she did not even have the right to stay in the country after six months” (sic).

62.	For those reasons, the Tribunal felt that it would be “wholly inequitable” to make an award for any loss of wages in that respect.

63.	The challenge made by the Claimant to that conclusion is that the structure of the Race Relations Act required the Tribunal to consider whether it was just and equitable to make an award of financial compensation but that if such an award is appropriate, it must be made in accordance with the normal principles of tortious damage which is not subject to a just and equitable reduction.  It is correct that section 56 of the Race Relations Act 1976 does provide that:-

“The Tribunal shall make such of the following as it considers just and equitable -  ...(b) an order requiring the respondent to pay to the claimant compensation of an amount equal to the damages he could have been ordered by a county court..”.

64.	In our view, there is no basis for this challenge because even applying the principles advocated by Mr Reed on behalf of the Claimant, no damages could be paid because the Claimant never had the right to work in this country and therefore she could never have received any payment and of course it is not suggested that she would have been working abroad.  Thus we reject this ground.

The Injuries to Feelings Claim
65.	The Claimant by her cross-appeal challenges as being too low the award of £6,000 for injury to feeling awarded to her by the Employment Tribunal.  The reasoning of the Employment Tribunal had been that the Claimant suffered “a traumatic experience” being treated in the way that she was when her relationship with the Respondents ended and this was aggravated by her own concern relating to her illegal position as she was in the country unlawfully.  There was no medical evidence before the Tribunal in respect of the injury to feelings claim.  The Tribunal considered this was discriminatory compensation for “a single act” but “that the claimant had not proved to our satisfaction any continuing effect as a result of the termination of the arrangement”.  The Employment Tribunal then put this case “to towards the bottom end of the middle band” before awarding the Claimant £6,000.

66.	The thrust of the challenge by Mr Reed to this award is that the Employment Tribunal placed this case in too low a category and that this was not a conclusion that a reasonable Tribunal could have reached.  He seeks to derive assistance from the case of Voith Turbo Ltd v Stowe (UKEAT/0675/04) but in that case, it was common ground as explained in paragraph 7 of the judgment that compensation had to be assessed in accordance with the middle band and so we are unable to derive any assistance from it.

67.	In Vento v Chief Constable of West Yorkshire Police [2003] ICR 318, 335 Mummery LJ explained the three categories with the top category applying “where there has been a lengthy campaign of discriminatory harassment and a ground of sex or race” [65] while the middle category “should be used for serious cases which do not merit an award in the highest band”.  The lowest category would be “appropriate for less serious offences, such as where the act of discrimination is an isolated or one off occurrence”.

68.	The bands for each of the categories has more recently been reconsidered in the light of inflation with the top of the lowest going up to £6,000 and the top of the middle band being increased to £18,000 (Da’Bell v NSPCC [2010] IRLR 19).

69.	In essence, this is, as Ms Prince pointed out, a perversity challenge because the Claimant’s case is that no reasonable Tribunal could have categorised this case in the way in which it did.  We are unable to reach the conclusion that the Claimant’s case reaches the high threshold required for a perversity finding which was famously described by Mummery LJ in Crofton v Yeboah [2002] IRLR 634 as being limited to cases “where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable Tribunal, on a proper appreciation of the evidence and law would have reached” [93].  In reaching this conclusion, we take the view that the Tribunal was best placed to assess the value of the injury to feelings and their assessment comes within the correct bracket especially as they concluded that the event did not have a “lasting effect on the claimant” [18] and no medical evidence was adduced.  Thus this ground of appeal fails.

Comments on the Decision of the Employment Tribunal
70.	It gives us no pleasure whatsoever to have to state that we have been compelled to make two major criticisms of the decision of the Employment Tribunal and in particular the liability decision.  First, the numbering of it is bizarre running sequentially up to paragraph 46 and then reverting to paragraph 37.  In addition and more importantly, the Tribunal recorded that its attention had been drawn to numerous authorities, but it then fails to explain how those authorities or any of them enable them to reach the conclusion which they did.  As we have explained if the representatives of the parties had not been sensible and agreed to this Appeal Tribunal making decisions itself, it would have been necessary to have remitted this case to an Employment Tribunal for a further hearing.  Nevertheless the task of this Appeal Tribunal was made much more difficult by the failure of the Employment Tribunal to perform their task in the way that they should have done.

Conclusion
71.	For the reasons which we have explained, the appeal and the cross-appeal are dismissed but we cannot part with the papers without repeating our gratitude for the help and common sense of the legal representatives of the parties for their clear and concise oral and written submissions.