A new project by the Law Centres Network, with the support of The Baring Foundation, has seen the publication of Supporting migrant workers: rights-based approaches, an accessible guide to the law of supporting migrant workers. Here, the book’s author, Ben Amunwa, explains the project’s background and discusses three key challenges in this fast-moving area of law. Since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 removed employment law from scope in 2013, and after the introduction of employment tribunal fees in the same year, many Law Centres focused their limited resources away from employment matters. Thanks to the successful challenge to the fees regime brought by Unison (
R (Unison) v Lord Chancellor [2017] UKSC 51),
1See also September 2017 Legal Action 39, November 2017 Legal Action 33 and December 2017/January 2018 Legal Action 29. employment tribunals are now considerably busier and demand for assistance with employment law matters is on the rise.
Against this backdrop, I was asked to do three training sessions for Law Centres and partner agencies across England, aimed at getting advisers to make greater use of rights-based approaches to protect and enforce the rights of migrant workers at the sharp end of the UK labour market.
My speaking notes soon grew to over 100 pages and became Supporting migrant workers: rights-based approaches, a short publication on four topics: basic employment rights; the gig economy; the hostile environment; and modern slavery. Along the way, I realised that my brief was more complex than it first appeared. Here are three key challenges.
Rights and reality
The first challenge is understanding the relevance of international law and human rights to what are most often disputes between private parties. Outside of trafficking cases and those cases where courts or tribunals have themselves breached people’s human rights, international law does not feature in the majority of domestic employment law disputes. The traditional separation between international civil and political rights (enforced via the European Convention on Human Rights) and economic, social and cultural rights, which are not enforceable in the same way, reinforces this trend.
Fortunately, that is not the end of the matter. There is, at the very least, a presumption that English law is to be interpreted in accordance with international law (see
R v Lyons and others [2002] UKHL 44; [2003] 1 AC 976,
2See May 2003 Legal Action 26. per Lord Hoffmann at para 27). Courts have also recognised that human rights may include basic social and economic standards (see, for example,
Matthews v Ministry of Defence [2003] UKHL 4; [2003] 1 AC 1163 per Lord Hoffmann at para 26). Many employment law rights are derived from European law and therefore (at least until Brexit day) may gain assistance from the
EU Charter of Fundamental Rights (which contains an entire chapter on workers’ rights).
These arguments may be underused in employment tribunals, but they are not useless. International law can and should be used, much like an Instagram filter, to change the interpretation of a set of domestic legal provisions. During the training, one solicitor described how she had used the EU Charter to argue that the government’s repeal of Equality Act (EA) 2010 s40, which provided that employers may be liable for harassment by third parties, was incompatible with EU law and that s40 or its effect ought to apply, notwithstanding its repeal. The case subsequently settled before reaching the tribunal. Such arguments could provide victims with access to a remedy despite the removal of domestic employment law protections. Scandals like the sexual harassment at the Presidents Club, which triggered fresh calls for s40 to be reinstated, highlight the importance of these seemingly abstract legal battles.
Some are more equal than others
The second challenge concerns how to combat discrimination against migrant workers. The solicitors and advisers who participated in the training frequently had migrant worker clients who had been denied job offers, subjected to mistreatment or had their employment summarily terminated because of their insecure immigration status.
The definition of race in EA 2010 s9 includes ‘colour, nationality, ethnic or national origins’. It does not include immigration status. This is a problem for migrant workers who are exploited by their employers because of their vulnerable status but not because of their ‘colour, nationality, or ethnic or national origins’.
In any claim for direct race discrimination, the claimant must establish a causal link between the less favourable treatment that they have suffered and their race, as defined. If the reason for the treatment is in fact the victim’s precarious immigration status, that will not amount to race discrimination.
Accordingly, in
Taiwo v Olaigbe and another; Onu v Akwiwu and another [2016] UKSC 31,
3See April 2017 Legal Action 36 and May 2017 Legal Action 26. the UK Supreme Court considered whether discrimination on the grounds of immigration status equated to direct discrimination on the basis of ‘nationality’ for the purposes of the EA 2010.
Despite one of the claimants in that case being ‘slapped and spat at … mocked for her tribal scars and her poverty, and called a “crazy woman”’ (para 4), the court dismissed their claims for discrimination on the basis that the EA 2010 definition of race could not be extended to cover immigration status. The claimants were unable to establish that their ill treatment was because of their nationality, rather than their vulnerable immigration status. (While the court did not consider a potential claim for indirect race discrimination in that case, the same problem is likely to arise there.)
The decision was disappointing, but its legal logic is hard to fault. After all, there are many persons who are subject to immigration control but who are not vulnerable in the same way as these claimants were. Expanding the EA 2010 definition of race to include the full variety of immigration statuses in the UK would risk undermining the protections of the Act.
There are other remedies available that may compensate for some of the losses suffered by exploited migrant workers. Claims for the denial of the national minimum wage, rest breaks, holiday pay, unpaid wages and other breaches of employment legislation may be of assistance.
For persons affected by the government’s hostile environment policy, including Windrush cases and those involving EEA nationals, there may be remedies under unfair dismissal law where employers have failed to follow due process or have acted unreasonably in the circumstances.
During the training sessions, I heard numerous examples from participants of clients who faced dismissals due to their inability to produce certain documents, even though they had valid leave to remain in the UK. In order to avoid everyday injustices, much depends on the ability of an adviser to explain the meaning and effect of immigration law, and to persuade employers not to make rash decisions in light of fines of up to £20,000 per illegal worker.
Currently, there is no single remedy in the employment tribunal or the civil courts for exploited, abused or ill-treated migrants.
Currently, there is no single remedy in the employment tribunal or the civil courts for exploited, abused or ill-treated migrants. Advisers require a broad cross-section of legal tools at their disposal, in addition to discrimination law. As Lady Hale, giving the unanimous judgment of the Supreme Court, stated in Taiwo at para 34:
[T]he present law, although it can redress some of those harms, cannot redress them all. Parliament may well wish to address its mind to whether the remedy provided by section 8 of the Modern Slavery Act 2015 is too restrictive in its scope and whether an employment tribunal should have jurisdiction to grant some recompense for the ill treatment meted out to workers such as these, along with the other remedies which it does have power to grant.
Trafficking compensation claims
That leads me to the third and final challenge. For all the government’s emphasis on eradicating modern slavery, currently there is no ‘tort of trafficking’ that would allow victims to bring a comprehensive civil claim against their exploiters. Claimants have to rely on a patchwork of statutory and common law claims in the employment tribunal and/or the civil courts.
That is more than a mere formality. Some of the statutory claims available may be inadequate for this client group. Most claims in the employment tribunal must be brought within three months of the event or the last in a series of events. Such stringent time limits are likely to be difficult for victims of trafficking (and their advisers) to comply with, diminishing the prospects of otherwise viable claims.
Claims for unlawful deductions from wages in the employment tribunal that have been brought after 1 July 2015 are capped at a limit of two years’ back pay.
4As a result of Employment Rights Act 1996 s23(4A), which was inserted by Deduction from Wages (Limitation) Regulations 2014 SI No 3322 reg 2. While unlawful deduction claims have several advantages for claimants, for anyone who has been exploited for longer than two years – as is the case for many trafficking victims – they do not provide an adequate remedy. That is directly in conflict with the government’s commitment to ending modern slavery and is not consistent with international anti-trafficking legal frameworks.
More generous limitation periods are available in the county court or High Court, but there are also other factors to consider, such as the higher risk of an adverse costs order or delays in resolving the case.
As part of the project, I interviewed Jamila Duncan-Bosu, a solicitor at the
Anti Trafficking and Labour Exploitation Unit (ATLEU) who regularly litigates on behalf of trafficking victims against private parties and public bodies. She told me that ‘almost every client that I bring a claim for is in some way late’.
In addition to that procedural hurdle, advisers face the task of breaking down the treatment into easily identifiable claims. ‘What would be a far better position,’ says Jamila, ‘is if there was a tort of trafficking. Somebody should be able to go to a court or tribunal and say, “I’m a victim of trafficking,” and that in itself is a cause of action leading to a certain remedy.’
ATLEU and its partners are an invaluable resource for those in need of advice and support on any aspect of trafficking claims and their funding. Against the odds, they have been able to secure life-changing sums of compensation through civil and employment claims (see, for example,
Mruke v Khan [2018] EWCA Civ 280). In practice, modern slavery victims may encounter serious difficulties obtaining legal aid certificates to pursue civil claims. Even after a certificate is obtained, enforcing any favourable judgment may be challenging and the lord chancellor will exercise the statutory charge over any compensation obtained from defendants, which, in at least one unfortunate case, reduced the claimant’s compensation to nothing (see
R (Tirkey) v Director of Legal Aid Casework and Lord Chancellor [2017] EWHC 3403 (Admin)). Alternatives to legal aid, such as conditional fee agreements or crowdfunding, may provide access to remedies in appropriate cases.
Conclusion
This is an evolving area. There is growing demand for legal support. The Law Centres Network project helps enhance the capacity of advisers to tackle some of the above challenges. We hope to continue promoting the publication and training, with further training anticipated in Bristol later this year.