Presenting a claim to the employment tribunal or the High Court against a trafficker

Assets

It is only worth pursuing a compensation claim if the defendant/respondent has the money or assets to pay the client.  Court proceedings are lengthy and stressful, so consideration should be given to the effects upon the client and real value of pursuing a claim. Moreover, if the claim is to be funded by the Legal Aid Agency you will be required to demonstrate that there is sufficient cost benefit.

A good starting point in determining the defendant/respondent’s ability to satisfy any successful award of compensation to the client. Are they able to talk about the defendant’s assets with any certainty for example, are they aware if they own property and vehicles? These are things upon which a charge could be obtained.

A land registry search can be done for £3 as long as the address of the property is known. It is possible under both legal help and a certificate of funding to obtain an asset report whereby an investigator can look into the financial circumstances of the defendant/respondent. However, it is important to ensure that you are clear as to the method that the investigator is going to use. It would amount to professional misconduct to condone or to actively seek out unlawful means of surveillance. Other factors to consider include:

• What does the defendant/respondent do for a living?
• Are they a professional in stable employment? If so, would an attachment of earnings order post any order for compensation result in a reasonable sum for the client each month.

Enforcement

The enforcement of an award is not usually covered by legal aid.

An employment tribunal award can be enforced using the High Court Enforcement service for which there is a fee. A complaint can also be made resulting in the respondent being fined.

https://www.gov.uk/government/publications/employment-tribunal-penalty-enforcement

Similarly, judgments of the High Court can be enforced via the High Court.

In any event remember that the statutory charge will take effect and the client will be required to account to the Legal Aid Agency.

Names and addresses in the employment tribunal

The 2013 Employment Tribunal Rules of Procedure inadvertently make it more complex for some victims to bring claims.

Claimants may fall foul of the requirements in Regulation 10 leading to rejection of their claim. According to Rule 10, the tribunal shall reject a claim if it does not contain the claimant’s name and address and each respondent’s name and address.

It is important to make sure that the claimant’s current address is not included on the employment tribunal application form, unless the client has given express and informed consent. The client should be advised that the claim form will be provided to the respondent and the respondent will therefore become aware of their address. In practice we have had little difficulty in persuading employment tribunals to allow the use of either the solicitors or a referral agency or the registered office of the safe house provider, to be used in place of the claimant’s actual address.

However, the requirement to provide the respondent’s name and address may be more problematic. A number of victims do not know the address at which they were held. Prior to the 2013 Rules of Procedure coming into force, the practice was to present the claim to the employment tribunal. Then an application was made to the tribunal for a third-party disclosure order against a third party who would have the address, for instance an employer, the Home Office, a bank etc. The claimant was protected as to time limits and the claim only failed if it did not prove possible in the event to obtain the respondent’s address and proceed with the case.

The situation today is more difficult. It is crucial to understand the effect of Rule 13(4); a claim which is rejected because it lacks the respondent’s address and is later admitted upon the provision of the address, is treated as presented on the date the defect was rectified. The effect is that, if the address is only obtained outside of the statutory time limit, the claim is out of time. The claimant then has to rely on the tribunal’s discretion to extend time on either reasonable practicability or just and equitable grounds. This is not a desirable position for a claimant to find themselves in.

ATLEU are not as yet aware of any case law on this point. If the claimant cannot obtain the address within the time limit, it is nevertheless crucial to ensure that the application is presented to the tribunal within the three month time limit (as amended by the ACAS EC scheme). If the claim is then rejected under Rule 10, a prompt application may be made for the tribunal to exercise its discretion under Rule 6 (irregularities and non-compliance) to waive the requirement to provide the address (perhaps on a time-limited basis) and accept the claim. If this application is rejected, a reconsideration can be sought and if necessary an appeal made to the employment appeal tribunal.

The alternative is to let the tribunal reject the claim and then take no steps until the address is procured, and then apply for the tribunal to extend time – and to appeal any rejection to the employment appeal tribunal. However, you may be at a disadvantage in arguing a time point when it is not necessary to do so. Further, this approach will not work if a third party disclosure order is needed from the tribunal. In practice the need for a third party disclosure order may add weight to an application for the tribunal to waive the requirement under
Rule 6.

Contract of Employment

Where the client has been trafficked for the purposes of forced labour or domestic servitude it may be that a compensation claim can be founded on a breach of contract. Therefore, you will find it  useful to obtain any documentation that assists you as to the terms of any contract.

Where the claimant is a migrant domestic worker, a statement of terms and conditions will usually have been sent to UK Visas and Immigration as part of the visa application. www.gov.uk/government/publications/requests-for-personal-data-uk-visas-and-immigration

In other cases, such as forced labour within the manufacturing or agricultural industry, the claimant may have been registered with an agency, or steps taken to obtain a National Insurance Number.

It is worth making a subject access request at the earliest possible stage to see what terms, if any, have been set out.

The respondent will often assert that a number of variations were agreed between the parties and produce documents to that effect. Remember to check how literate the claimant is.

• What language is the documentation in?
• How and by whom were documents translated to the claimant?
• Was the claimant ever asked to sign documentation prior to or after their arrival in the UK?
• Can they remember what the documents looked like?

Don’t forget that, in the absence of a written contract, certain terms are implied. Therefore, if you are of the view that it could be asserted that the client was in employment, a complaint can still be made.

Wages

Careful instructions are required as to how and when payments, if any, were made. It is not uncommon for payments to be made to relatives or bank accounts in the claimant’s home country, therefore it is important to establish:

• Whether the payments be evidenced in any way? For example, can bank statements be obtained? Can statements be taken from the individual receiving the payment if payments were made in cash?
• Are the sums the respondents say they paid sufficient to attract payments of tax and national insurance. Consider making a subject access request to the HMRC. https://www.gov.uk/guidance/hmrc-subject-access-request
• If the claimant has an account in the UK? Did they have full access and control of it?
• On disclosure, ask for the respondent/defendant’s bank statements covering the period of the claimant’s employment. If they are relying solely on cash withdrawals, ask for three months’ either side to see if indeed there is a change in pattern.

Where the benefit received by the respondent/defendant is in the form of services, the starting point is the objective market value of the services (which, may well be determined by the National Minimum Wage) tested by the price which a reasonable person in the defendant’s position would have had to pay for them and taking into account conditions which increased or decreased their objective value to any reasonable person in that position. Benedetti v Sawiris 2013 UK SC 50.

The Facts and Figures: Tables for the Calculation of Damages Sweet & Maxwell will give you current rates of pay by sector.

National Minimum Wage

In the absence of a preferable contractual rate of pay, it will often be possible to assert that the client had a right to receive the National Minimum Wage (NMW).

The basis for the calculation is set out at section 17 National Minimum Wage Act 1998. The formula set out in that section seeks to ensure that the claimant is compensated, in respect of the amount by which payments received fell short of the NMW, at an amount equal to the NMW at the date of award. The formula is expressed as follows:

(A/R1) x R2

Where:

A is the amount of the NMW minus the hourly rate actually received,

R1 is the rate of national minimum wage which was payable in respect of the worker during the pay reference period, and

R2 is the rate of national minimum wage which would have been payable in respect of the worker.

In other words:

1. Calculate the NMW at the relevant time minus the hourly rate actually received
2. Divide the level of underpayment by the NMW rate at the relevant time. This gives you the proportion of the underpayment.
3. Finally, multiply by the current NMW.

The effect of this is that if the respondent/defendant pays someone 75% of the NMW, a 25% underpayment, the tribunal/court will award compensation of the unpaid amount on the basis of the current NMW.

Calculating a NMW claim over a long period can be very complex, and off-putting to a judge. We have a spreadsheet that will do the calculations for you and which has been used very effectively in hearings. We have also prepared a guide to using the spreadsheet.

It is advisable to have this available in electronic format for a remedy hearing. Therefore, if the tribunal makes a finding which is inconsistent with the spreadsheet, it is quick to alter and re-calculate. To illustrate, if the client’s case is that they worked 18 hours a day, the spreadsheet is prepared on that basis. If the tribunal makes a finding that the client in fact only worked 10 hours a day, the spreadsheet can be quickly and easily amended to recalculate losses on the 10 hour basis during the hearing. The updated spreadsheet can be emailed to the judge.

The Family Worker Exemption

The burden is on the respondent to demonstrate that the claimant was treated as a member of the family and the tribunal/court is required to interpret this narrowly .

Points to consider:

• How did the claimant address the respondent? It is not uncommon to find that they are not allowed to use first names, etc.
• How was the claimant introduced to others,? ‘Housegirl’, servant, etc.
• Was the claimant registered with a doctor/dentist?
• Where did the claimant eat meals?
• Where did the claimant sleep?
• Did the claimant socialise with the respondents? If it was only when the children were present what was the claimant actually doing during these times?
• Did the claimant have their own door key?
• Were they able to invite friends to the house?

Respondents will often produce lots of photographs as evidence of the claimant being integrated into the family.

• Does the claimant recall the events in the photos?
• Is the claimant only with the children, what do they actually show?

The claimant should be asked to describe a typical day in as much detail as possible along with the length of time it would take them to complete various tasks. Also, consider whether it could be argued that the claimant was on call because  they were required to carry out tasks at night as and when required by the respondents.

The Family Worker Exemption has been found to be unlawful by the London South Employment Tribunal, in the matter of Puthenveettil v Alexander & George, & Others 2361118/2013.

As a result of Puthenveettil the government asked the Low Pay Commission to review the exemption and make recommendations. Until formal amendment is made to the regulations a respondent might seek to rely on the exemption. However, given the government’s failure to provide a meaningful justification for the existence of the exemption, it seems unlikely that a respondent would be successful in persuading another Court or Tribunal to depart from the findings in Puthenveettil.

Where a respondent seeks to rely on the exemption they should be directed to Puthenveettil and invited to withdraw. Consideration should also be given to seeking a preliminary hearing to strike out the defence.

The Limitation Regulations – Impact on National Minimum Wage Claims

The most significant element of compensation recovered for victims in civil compensation claims has historically been under the National Minimum Wage in the Employment Tribunal.

Unfortunately, during the passage of the Modern Slavery Bill 2015, the right to claim the national minimum wage – or indeed any payment at all – in the Employment Tribunal, was significantly reduced. In November 2014, a restriction on the right to recover the national minimum wage was introduced.

From July 2015, the Deduction from Wages (Limitation) Regulations 2014 (which came into force on 9 January 2015), prevents anyone from claiming more than two years’ National Minimum Wage back pay under section 13 Employment Rights Act 1996. This can have a dramatic impact on victims of trafficking. It is not unusual for a victim to have been held in servitude for over 10 years and so to bring a claim for 10 years’ wages. The regulations, it is stated, were introduced to answer concerns expressed by business over the unexpected and unquantified holiday pay claims following the Bear Fulton litigation. However, the regulations went further than merely restricting back claims for holiday pay – the right to the National Minimum Wage claim (and indeed to any deduction from wages) was restricted as well.

It is notable that the Department for Business, Innovation and Skills’ impact assessment made no reference to victims of trafficking and modern slavery.   Accordingly, there are no reasons to believe that they engaged with the rights of victims of trafficking.

The impact assessment asserted that HMRC were enforcing National Minimum Wage claims, so in effect, the right of the victim to bring a claim in the tribunal is not needed. However, according to HMRC’s figures, average recovery from the National Minimum Wage back pay in 2014 was £205.00 per person, which very strongly indicates that few or no recoveries are made for those with underpayments going back over two years.

The 2014 Regulations apply to claims brought in the Employment Tribunal after 1 July 2015.  They impose a limitation on the amount of compensation that can be awarded under a claim brought under Section 23 of the Employment Rights Act 1996. Regulation 2 provides that –
‘(4A) an employment tribunal is not (despite subsections (3) and (4)) to consider so much of a complaint brought under this section which relates to a deduction with a date of payment of wages from which the deduction was made before the period of two years ending with the date of presentation of the complaint.’

The two year compensation limitation imposed by the 2014 Regulations is strict.  The tribunal has no discretion to extend time.

This leaves claimants who wish to recover more than two years back pay with a stark choice.  They can either proceed in the High Court, accepting that the limitation period is six years.  It is important to remember that limitation in the High Court, in effect, runs from the beginning of the failure to pay the minimum wage, as opposed to in the Employment Tribunal where (absent any gaps) it runs from the end of the series of deductions.  Accordingly, the High Court may not provide a full remedy for some victims.  Further, other victims may have difficulty in accessing the High Court, including concerns about its formality or legal aid costs.

The other alternative is to proceed in the Employment Tribunal and either limit the claim to two years or seek to persuade the Employment Tribunal to overturn the limitation regulations on the grounds that they are contrary to EU and/or Human Rights law.  If an attempt to overturn the limitation regulations is envisaged, it is advisable to inform Secretary of State for Business, Innovation and Skills as soon as proceedings are issued so that they may be elect to be joined; the Secretary of State will then make representations in effect in defence of the limitation regulations.

Evidence

Third party evidence

Remember that requests for disclosure relating to the client can be made under s7 (1) of the Data Protection Act 1998. Reviewing documentation at the earliest opportunity will of course identify any strengths and weaknesses in your client’s potential case.

It is a good idea to attach photo ID and a consent form from the client when submitting a request to ensure there are no delays. Many data holders have specific forms and procedures to be followed. Common source of evidence include:

• UKVI. If the client is a non -EU national then documentation relating to the employment or arrival in the UK may have been submitted. A subject access request in an overseas domestic worker case may be the only way to find out the identity and contact details of the employer.
• The Trafficking Single Competent Authority (SCA).
• Salvation Army and subcontractors may have notes or information that does not make its way to the SCA file.
• HMRC. In cases where workers details have been used to obtain a national insurance number of benefits information about the employer or the sums obtained in benefits can be found.
• Police. Was there any interview or investigation carried out? Statements might provide information about where and when incidents took place.
• Banks. Where an account was opened in the client’s name but not controlled by them.
• GP’s and other healthcare professionals. The client may have disclosed information about their treatment, or have sought treatment for injuries consistent with any mistreatment they describe.

Orders for disclosure

Orders for disclosure can be sought from the court or tribunal for documents, which might demonstrate payments or the lack of payments to the client, these include:

• Bank statements
• Payslips
• Payroll records
• Timesheets
• Diaries.

Where the above are not provided voluntarily you might have to set out in some detail as to the legal issues the documents go to and how they will assist the court in determining the issues before it.

Independent witnesses

Independent witnesses do not have to be a direct witness, i.e. they may only have come into contact with the client after they escaped their trafficking situation or had limited contact with the client during the trafficking situation. However, the evidence they may be able to give may greatly assist a case.

Often there is little documentation and the court is faced with two conflicting accounts, or trauma and the passage of time has affected the client.

An independent witness could potentially assist the court in considering credibility.

For example, when the witness encountered the client how did they present? What were they wearing? Is what they said in keeping with the client’s account of events?

It is important to take a proof of evidence from the witness as soon as you are able and, if possible, get it signed well in advance of any hearing. It is not uncommon for witnesses to change their minds about attending a hearing, so while limited weight might be placed on the statement it can at least still be put before the court.

Experts

Expert evidence may be required in proceedings for a number of reasons.

Most practitioners will be familiar with the use of medical experts, primarily to establish losses for personal injury or injury to feelings. Most medical experts in the tribunal are for mental injuries. However, experts in respect of physical injuries, for instance brain injury or scarring experts, may also be required.

Careful consideration should be given to the potential traumatic or re-traumatising effect of a victim seeing a psychiatric medical expert and in addition, the other side’s medical expert. If possible, a jointly instructed expert may be desirable.

Consideration should also be given to whether it will be necessary to instruct a trafficking expert. The leading Supreme Court case on human trafficking Hounga v Allen [2014] UKSC 47 approved the use of a human trafficking expert to assist the tribunal in determining whether or not the complainant was a victim of trafficking.

It will be necessary to consider whether or not the status of the claimant’s trafficking status is, in fact, an issue in proceedings. For instance, in a straightforward National Minimum Wage claim, where there are no concerns around jurisdiction or illegality, it may not be relevant and permission would not be given.

However, the claimant may wish to rely on the Trafficking Convention or on the Trafficking Directive, for instance, to defeat an illegality defence or because they contend that the tribunal should dis-apply the two year Limitation Regulations, then it may well be necessary for the court or tribunal to make a determination as to whether or not the claimant is a trafficking victim. In this case, permission should be sought from the court or tribunal. Consideration should also be given to a joint expert; both the Civil Procedure Rule and the Employment Tribunal rules and practice commend the use of joint experts where possible.

In claims against the state, the trafficking status of the claimant will almost certainly be an issue as, unless the claimant is accepted as a victim of trafficking, they will have no cause of action under Article 4. It is not unusual for the Home Office, which has conclusively recognised a person as a victim of trafficking, to deny that they are a victim for the purposes of litigation.

Expert opinion that a claimant is a victim of trafficking will be particularly useful if the claimant does not have a positive conclusive grounds decision by the time of their compensation hearing.

The use of trafficking experts is nowhere near as well established as that of medical experts. Sourcing a trafficking expert is not the same as sourcing a medical expert. There is no established ‘market’ of professional experts. Care will have to be given that the trafficking expert understands their duties to the court or the tribunal, and particular care given in drafting letters of instruction. You will have to ensure they are willing and able to give evidence at the hearing if necessary.

In Hounga, the Supreme Court relied on the trafficking report, although the expert had not met the victim. However, it is still advisable, wherever possible, for the expert to reach their decision on whether or not the claimant is a victim of trafficking following meeting the complainant in person, or at least virtually.

Special Measures: What is available and when to ask

In both the Employment Tribunal and the High Court, several special measures are available to assist victims.

This is a developing area of law and differing courts and tribunals have different levels of knowledge and logistics in providing special measures.

The two judgements in the case of Ajayi 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.

What is available

You may wish to consider requesting screens so that the trafficking victim cannot see their traffickers or asking the court or tribunal to manage the order in which the witnesses and the parties come into the hearing.

It may be possible to give evidence over video link. It may be possible to request that the employment tribunal judge takes over the cross-examination of the victim from the alleged trafficker; this option is less likely to be applicable in the High Court.

Practitioners need to consider at an early stage whether to apply for an anonymity order or a restricted reporting order. The Civil Procedure Rules and the Tribunal Rules of Procedure set out the practice and procedure.

Logistics

It is advisable to apply early and certainly by the case management stage, whether that is at the costs and case management conference in the High Court or at a case management preliminary hearing in the Employment Tribunal. It may be necessary to rely on the Trafficking Convention and / or the right to a fair hearing under Article 6 of the Human Rights Convention if a victim might be denied access to justice because of a failure to provide special measures.