Commentary

(b) Illegality in discrimination cases

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(b) Illegality in discrimination cases

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(b)     Illegality in discrimination cases

It has been held consistently that discrimination law rights operate differently. Under the discrimination statutes, the legal rights do not flow so directly from employment status and so the normal rules on contractual illegality are not determinative. Instead, discrimination being a form of statutory tort, it is the effect of illegality on a tort action that has to be considered, and that has always caused problems. It was finally considered at the highest authority by the Supreme Court in Hounga v Allen [2014] UKSC 47, [2014] IRLR 811, but in a way that arguably raised as many problems as it solved. Before going on to that decision it is necessary to look at the pre-existing case law. There is of course much authority in tort law generally but in the particular context of employment-related discrimination the leading authority was Hall v Woolston Hall Leisure Ltd [2000] IRLR 578, CA.

'The employee had been receiving part of her wages without deduction of tax or NIC and the contract of employment was held to be tainted with illegality by the employment tribunal who concluded that the employee was aware that the Inland Revenue were being defrauded by the arrangement the employers were applying to her remuneration. The employee had been dismissed

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