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Diplomatic immunity for trafficking claims quashed

by Nusrat Uddin, Wilson Solicitors LLP

An exploited domestic servant, JW, brought a claim against her Saudi diplomat employer. She worked for over 16 hours a day, for months, without any breaks or days off, and was unable to leave the diplomat’s residence. Her promised wages were also withheld.

The diplomat asserted that his diplomatic status protected him from any civil claims and asked the court to strike out the claim. The Employment Tribunal held that the current Saudi diplomat is not immune from the civil jurisdiction in relation to claims of human trafficking and modern slavery.

The judge interpreted an exception to diplomatic immunity in a way that it applied to the trafficking and employment of a domestic servant in conditions of modern slavery. Observing that ‘it would be difficult for a court to forsake what it perceived as a legally respectable solution’, so the judge refused to strike out the case.

The judgment is groundbreaking because it holds that a current diplomat is not immune in relation to claims of human trafficking and modern slavery. In October 2017, the UK Supreme Court in Reyes v Al-Malki had held that a former diplomat was not immune in those circumstances, but whether a current diplomat still enjoyed immunity was unclear. This judgement transforms the dicta of the Supreme Court into a ratio that can be applied in other cases, advancing the commitment of the international community, and the UK in particular, to end modern slavery.

The diplomat has indicated that he will be appealing the decision and so it is likely that the case may again be appealed as far as the Supreme Court, just as the Reyes v Al-Malki case was. However, we are extremely pleased with the judgement at this stage which has far reaching implications for victims of trafficking and modern slavery who are ill-treated by their diplomat employers. These claims ensure that victims are able to assert their rights in the face of such exploitation. We hope that this judgement acts as a deterrent against abuse from such employers going forward.

JW instructed Wilsons Solicitors LLP and was represented by Philippa Webb of Twenty Essex Chambers.

More information can be found on the Wilsons LLP website.

Nusrat Uddin is a solicitor in the Public Law team at Wilson Solicitors LLP. She works with vulnerable and disadvantaged clients who have been failed by state authorities with a particular focus on improving state support for victims of trafficking and modern slavery.

Increase in compensation in discrimination claims

Discrimination claims are a vital part of compensation for victims of modern slavery and human trafficking. Victims have gained substantial compensation from their traffickers by way of discrimination claims in the Employment Tribunal. Injury to feelings is one of the most important components of these discrimination claims.

Since the 2002 case of Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102 compensation for injury for feelings has been divided into three ‘bands’:

  • The lower band applies to ‘less serious cases where the act of discrimination is an isolated or one off occurrence’
  • The middle band ‘should be used for serious cases which do not merit an award in the highest band’
  • The top band is appropriate for ‘the most serious cases such as where there has been a lengthy campaign of discriminatory harassment’.

Only in ‘the most exceptional cases’ will awards be higher than the top band.

The guidelines have now been increased for all claims presented to the tribunal after 6 April 2019. The new bands are:

  • Lower band £900 to £8,800
  • Middle band £8,800 to £26,300
  • Upper band £26,300 to £44,000.

These guidelines are found in the Presidential Guidance, 25 March 2019.

It is worth bearing in mind that although Vento refers to the seriousness of the conduct to determine the correct band, it is the effect on the individual and not the seriousness of the treatment which determines the level of compensation. Nevertheless, it will be considerably easier to establish the seriousness of the impact of the individual in cases of serious conduct – and vice versa.

If a victim has suffered from injury to their health, they can also recover compensation for personal injury in the tribunal in addition to compensation for injury to feelings. In contrast to the Vento bands, compensation for personal injury is usually calculated according to the 14th Edition of the Judicial College Guidelines for Psychiatric Damage.

Compensation for injury to feelings and personal injury is also now subject to a 10% uplift following Simmons v Castle [2012] 1ALL ER 334. There is no cap on discrimination damages.

This new increase underlines the effectiveness of discrimination complaints in compensating victims. Victims may also be entitled to compensation for aggravated damages, exemplary damages and interest.
When a failure to pay the National Minimum Wage over more than two years can be established as an act of discrimination, then damages for failure to pay the National Minimum Wage may be recovered for more than the two-year current limitation imposed by the Deductions from Wages (Limitation) Regulations 2014. See for instance Ale v Chugani and others.

More on compensation and discrimination claims in the Employment Tribunal

Au pairs and the barriers to fair pay by Rosie Cox

Recent research on au pairs in the UK has found that during the last 10 years, au pairing has changed dramatically. There is no longer a clear divide between the work done by au pairs and work that qualified nannies and full-time professional housekeepers would have done in the past. Au pairs are now open to exploitation by working long hours for low pay because government guidance is so scant and vague.

In 2008, the UK au pair visa was ended and with it went government regulation of au pairing. Current government guidance  allows for people in vastly different situations to be classified as au pairs. In the UK, an au pair can work any number of hours per week, be involved in any kind of activity and does not even need to live in their ‘host’s’ home. In fact, the only thing that the guidance is definitive about is that au pairs are not workers and they are not entitled to NMW and paid holidays.

Analysis of 1000 advertisements for au pairs posted on Gumtree.com revealed that au pairs were being offered posts that not only included full-time, demanding work within hosts’ homes, but that some ‘hosts’ also wanted ‘au pairs’ to work in their businesses and shops.

Despite many au pair roles being indistinguishable from domestic ‘work’, au pairs who might want to claim NMW face two barriers. The first is proving that they are workers employers found that “unless you state that you are hitting them [live-in domestic workers], the helpline is unlikely to tell you that you need to pay them minimum rather than au pairs, something that the vague and capacious guidance on au pairing makes very difficult. Second, if they live-in, they are then likely to be subject to the ‘family worker’ exemption from NMW. This rule has been written in such a way that researchers who called the government’s pay and work rights helpline posing as wage,”*.

A clear definition of au pairing is urgently needed in the UK. This should create a limited, part-time role for au pairs who are primarily engaged in language learning and cultural exchange and a separate role for domestic workers, unhindered by reference to family membership. Both should be rewarded with fair pay and conditions.

For more on the situation of au pairs in contemporary Britain, see As An Equal: Au Pairing in the Twenty-First Century by Rosie Cox and Nicky Busch.

Rosie Cox is Professor of Geography at Birkbeck, University of London. She has been researching paid domestic work and au pairing in the UK for over 20 years.

*Moss, Jenny. (2015). Migrant domestic workers, the National Minimum Wage and ‘family worker’ concept.  In Cox, R (Ed) Au Pairs’ Lives in Global Context: Sisters or Servants. Palgrave pp70-83

Extending time for minimum wage claims by Anna Beale

In 2015, a two year limit was placed on claims for unauthorised deductions from wages in the employment tribunal. As many victims of trafficking are paid nothing, or almost nothing, over many years, recovery of (at best) two years’ back pay will not fully reflect their loss. As an alternative, a claim can be brought in the civil courts for breach of the implied contractual term requiring payment of the minimum wage. A six year limitation period applies to such claims but of course many wage claims by victims of trafficking extend back still further.

Section 32(1)(b) of the Limitation Act 1980 provides a possible means of extending this six year limit. Where the Defendant has deliberately concealed from the Claimant any fact relevant to her right of action, the six years will not begin until the claimant has discovered that fact, or could reasonably have discovered it. Under section 32(2), such deliberate concealment is expressly stated to include a situation where a Defendant deliberately commits a breach of duty in circumstances where it is unlikely to be discovered for some time.

These provisions were successfully deployed in the recent case of A* [2017] EWHC 3098. A was a domestic worker for the Defendants for almost 10 years. As in many trafficking cases, when A was brought to the UK she and was unable to read or write in English. The Defendants made A sign documents that they sent annually to the Home Office, which stated that she was paid for her work in line with the national minimum wage.

The Court found that the Defendants had deliberately withheld from A the fact that they were representing to the Home Office that they were complying with UK employment laws, when they were not. The Court also found that the Defendants knew they were obliged to pay A the national minimum wage, and therefore that they fell within the provisions of section 32(1)(b) and (2). Time only started to run when A had learned enough English to read the documents she was signing, and so her whole claim was in time.

These circumstances may apply in many trafficking cases where there is a long period of employment. The availability of this extension should always be a factor in considering the best forum for such claims.

By Anna Beale
Barrister, Cloisters

*The case is anonymised in accordance with a court order pending determination of the Defendants’ application for a permanent anonymity order.

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