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Trafficking: remedy against ’employer’?

In an interesting recent ruling, (Zarkasi v Anindita & Anor [2012] UKEAT 0400_11_1801) the Employment Appeals Tribunal (EAT) considered an appeal from a trafficked domestic worker whose claim for unfair dismissal against her employer had been dismissed by the Employment Tribunal (ET). The ET had held that the contract of employment was illegal from the outset because the claimant had been working with false documents which, together with her employer, she had knowingly and fraudulently obtained in Indonesia prior to coming to the UK.  Therefore they concluded that she could not succeed in any claim where the contract was effectively prohibited by statute.

Before the EAT, the claimant argued that the ET should have allowed her a remedy against her employer despite the contract’s illegality because she had been recognised as a victim of trafficking by U
KBA and was, on balance, more sinned against than sinner. Under Article 15 of the Convention on Action against Trafficking in Human Beings, ratified by the UK in 2009, a state is obliged to provide in its domestic law for the right of victims to compensation against perpetrators. The EAT refused to accept that an international instrument which has not been incorporated into UK domestic law meant that she should be able to succeed in a claim based on an illegal contract particularly as, on the findings of the ET, she had entered it willingly and without compulsion. The fact that she had been recognised as a victim of trafficking by UKBA was not considered relevant because the ET had found that the claimant was not a victim of trafficking based on the evidence before it. The EAT stated that the claimant could pursue other non-contractual remedies against the perpetrator (false imprisonment, trespass, assault) implying that these remedies satisfied the requirement under Article 15 of the Trafficking Convention.

However, the EAT gave some hope to victims of trafficking by accepting that Article 4 of the European Convention for the Protection of Human Rights (the prohibition of slavery and forced labour) might enable a claimant to succeed against an employer in the Employment Tribunal notwithstanding the fact that the contract under which he or she was working was illegal. The EAT hinted that such a claim might succeed where the victim had been coerced or trafficked into the contract. Therefore on the right facts, a human right which is incorporated into the domestic law might enable a claimant to overcome the strictness of the doctrine of illegality and sue his trafficker in the Employment Tribunal.

Richard Bennett Head of Immigration at ITN Solicitors

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