Obtaining discretionary leave to remain/ a residence permit
A victim may apply for a residence permit to remain in the United Kingdom and work or claim benefits, while they are involved in a civil compensation claim against a trafficker. This is the case even where they have no other right to remain. It should be remembered that this residence permit will, in normal circumstances, only last as long as the proceedings.
Where to bring a claim
The decision as to whether to bring a complaint at the Employment Tribunal or Court will depend largely on the type of complaint, value of compensation and time limit available for making a complaint.
These factors are dealt with in more detail under the two sections in the links above but the following are likely to be important:
A claim in the employment tribunal must be started three months less one day from the end of the trafficking situation. In contrast, most claims in the court should be brought within six years of the beginning of the trafficking situation.
The nature of the relationship between trafficker and victim
If the type of work has significant aspects of a more conventional employment situation (e.g. domestic, factory or agricultural work), then employment law is more likely to be useful and the employment tribunal may be appropriate.
If the relationship bears little resemblance to a conventional employment relationship for instance sex trafficking, organised begging or trafficking of a child then the court might be the more appropriate choice.
The employment tribunal deals purely with employment law (although this is very widely defined), whereas the courts (in particular the High Court) have no such limitations.
If it is difficult to argue that there is any form of contract between the victim and the trafficker (for instance because the victim is a child or in a sex trafficking situation), the court may be more appropriate.
The experience at the hearing
The employment tribunal is generally seen as a less intimidating environment that the courts. The tribunal is a less formal environment with a more flexible procedure. Judges have been trained on human trafficking claims. There are well established systems of reasonable adjustments for vulnerable witnesses. However, claims in the tribunal more commonly go to a full hearing (as opposed to settling) so the victim would have to go through appearing in the tribunal and probably be in the same room as their traffickers.
Claims in the employment tribunal are usually quicker. All things being equal, and in normal circumstances, a claim in the employment tribunal may take between six and 18 months. Claims in the courts usually take longer.
If a victim cannot obtain legal aid, it is very inadvisable to go to court, as opposed to the tribunal, because the victim will be at risk on costs.
How many years of national minimum wage are owed?
In the employment tribunal, it is only possible to recover two years of national minimum wage (or £20,000 whichever is the greater) whereas the courts can award six years of national minimum wage.