Unlike in the employment tribunal, it is not necessary to show some sort of employment relationship in order to bring a claim to the court. All that is necessary is to show that the victim suffered damage at the hands of the trafficker.
Therefore, claims are brought in the courts where it is not possible to show that the trafficking situation gave rise to any contract between the victim and trafficker. It is common to bring claims for instance for children or those working in sex trafficking in the courts.
The courts can also deal with employment disputes, but only if they amount to a breach of contract, so a complaint to pay a sum due under the contract could be heard by the court (including for the national minimum wage), but not a complaint of unfair dismissal – because it is not a contractual complaint and it must therefore be heard by the Employment Tribunal.
Time limits in the courts depend on the claim which is brought. However, the courts can only consider the usual complaints brought by victims of trafficking if the complaint is started within six years. For example, if a claim is presented on 1 December 2016 then the court can consider all conduct from the 2 December 2010 onwards. It normally cannot consider anything before that date.
Accordingly, if someone has been held in servitude for 10 years, they can only claim for the last six years and can only recover compensation for what happened during the last six years. Further, for every week that they delay bringing a claim, their compensation will reduce by one week.
Unlike in the Employment Tribunal, where the time limit usually runs from the end of the trafficking situation, in the courts the time limit usually runs from the start of the trafficking situation. However, this is a generalisation, and time limits should be checked very carefully in each potential claim.
In certain situations, it may be possible to argue that the court’s six year limit should be extended. The case of Ajayi v Abu is a useful example of the High Court agreeing to extend the six year limit to permit a victim of trafficking into domestic servitude to recover for the entire period of trafficking although it was long than six years. It was successfully argued that the traffickers had deceived the victim and accordingly should not be able to take advantage of the limitation defence.
Some time limits in the court are for less than six years, so it is vital to check the individual circumstances.
Funding a court claim
Unless the claim is worth less than £10,000 it is very rarely advisable to bring a claim in the courts unless the victim has legal aid funding. This is because a victim who brings a claim against their trafficker in the courts will have to pay the traffickers’ legal costs if the victim loses the case; this is known as costs following the event. These costs could amount easily to tens of thousands of pounds. However, if a victim has legal aid funding, then they are usually protected from having to pay the traffickers’ legal costs even if they lose. This is a very significant advantage in running a court case and it may be able to leverage this to encourage the trafficker to settle.
A victim will usually need considerable support to obtain and then keep their legal aid funding throughout the case.
A victim will need to provide evidence of their financial situation. If they do not have bank statements etc. usually the support provider will need to provide considerable documentation. A victim may have to provide documents about income and assets in their home country as well.
There are very high fees in the courts. For instance, a claim for £100,000 (which would not be unusual if there is a long standing failure to pay the minimum wage) attracts the fee of £10,000. This will be covered by legal aid or, if a victim is of limited means, they may obtain remission from the fee, so they do not have to pay.
Bringing a claim in court
Generally speaking, the court is a more formal environment than the employment tribunal and can be found more intimidating by victims. However, many claims, but by no means all, in the courts settle without going to a hearing. It is not unusual for claims to be settled by way of a mediation session where the victim and trafficker do not have to meet.
The courts may apply special measures in a hearing to protect a victim from the traffickers for instance screens or perhaps video evidence. These options are more easily available for particularly vulnerable victims, for instance children. The two judgements in the case of Ajayi v Abu (a high court trafficking claim) contain useful guidance on the powers of the high court to provide special measures to protect victims, and the practical difficulties sometimes encountered. http://www.bailii.org/ew/cases/EWHC/QB/2017/3098.html and http://www.bailii.org/ew/cases/EWHC/QB/2017/1946.html
Even in normal circumstances, many court claims are subject to significant delay. It is not unusual for a claim against a trafficker to take well over one year if not more than two years..
While there is a good track record of victims obtaining compensation from their traffickers in the employment tribunal, there are fewer judgments in the courts. Therefore, these claims are to some extent less predictable. Judges in the courts are generalists, as opposed to employment judges who specialise in one area of law.
High Court or County Court
A claim may be brought either in the High Court or in the County Court.
The High Court will only accept jurisdiction if:
- The financial value of the claim and/or the amount in dispute exceeds £100,000, and/or
- The facts, legal issues, remedies or procedures involved are complex, and/or
- The outcome of the claim is important to the public in general.
Most trafficking claims will fall within at least one of these three categories so the High Court should accept the claim. Generally, not many trafficking complaints are brought in the County Court. However, for lower value claims which are not complex the County Court should not be overlooked as a possible forum. If a claim is brought in the county court it may be brought at a more local hearing centre as opposed to a High Court in a large city.
Claims which may be brought in the courts
The following are some claims that are available in the courts to victims:
- Breach of contract – The national minimum wage
The right to the NMW is implied by statute into all contracts of employment so a NMW claim will proceed in the High Court in a similar way to the Employment Tribunal except that aA court will consider a failure to pay the national minimum wage going back six years from the date the claim is brought.
National minimum wage claims have historically formed the bulk of compensation paid to victims of trafficking. To illustrate, a victim who worked twelve hours a day six days a week for the past six years would be entitled to approximately £170,000 in national minimum wage back pay. Other claims for breach of contract (e.g. an express contract for payment or to provide a benefit, such as education) can also be brought.
- Protection from Harassment Act 1997
This is a very useful claim because ‘harassment’ is so widely defined. A victim can bring a claim for eg physical abuse, verbal abuse, sexual abuse, failure to pay. It can include a claim for personal injury.
Further, the time limit is six years. This is an exception to the usual rule that personal injury claims must be brought within three years.
- Personal injury
If a victim has suffered injury – whether it is physical or psychological – they may recover compensation. This will usually involve seeing a medical expert to discuss their history. The time limit (except in harassment claims) is usually three years, but there are grounds to extend.
- False imprisonment/trespass to the person/assault
These claims are available in cases of physical abuse.
- Restitutionary claims
These are claims which permit a victim to recover compensation even if there is no contract between them and the victim; these can help victims in less clear- cut situations. There is little case law on such claims.
Supporting a client through court proceedings
Victims usually need considerable support during the court process. Bringing a claim requires no little tenacity and courage. Victims are likely to need support with the following:
- Obtaining and maintaining their legal aid entitlement
- Attending appointments with lawyers, medical experts and the like.
- Emotional and physiological support following medical evidence; sometimes a victim’s trauma only comes out when they see a good medical expert.
- Attending court and mediation proceedings.