Anna Beale represented the claimant, Ms Ajayi, a migrant domestic worker, in this unusual High Court claim brought against her former employers, Mr and Mrs Abu, for payment of the minimum wage, harassment, breach of contract and personal injury. In August 2017, the court found that the “family worker” exemption to the requirement to pay the minimum wage did not apply in this case. The quantification of that claim, together with Ms Ajayi’s other claims, was dealt with in a further hearing, the final judgment from which has recently been released.
Ms Ajayi succeeded in all her claims. Whilst the decision in her case is necessarily fact-specific, it raises a number of points of more general interest for employment, personal injury and human rights practitioners.
Ms Ajayi was brought to the UK from Nigeria by the sister of Mrs Abu, who, together with her husband, ultimately employed her in the UK. Ms Ajayi worked for the Abus, caring for their children, and carrying out housework tasks, for over nine years. The trial judge found that Ms Ajayi had worked around 60 hours per week for the vast majority of her employment, and that she was paid approximately £1,200 per annum over this period. The judge also found that Ms Ajayi’s social circle was limited to the Defendants’ family group and friends; that she was a junior member of the Defendants’ household and subject to their direction.
It was agreed between the parties that one issue to be determined by the judge was whether Ms Ajayi was a victim of trafficking, within the meaning of the Council of Europe Convention on Action Against Trafficking in Human beings (‘the Trafficking Convention’). Whilst Ms Ajayi had no free-standing claim based on her status as a victim of trafficking, Article 15 of the Trafficking Convention (which has been ratified by the UK) requires nations to provide victims with a right to compensation from the perpetrators of trafficking. In Hounga v Allen, the Supreme Court held that this right encompassed a right to compensation for related acts of discrimination. The European Court of Human Rights has also held that Article 4 ECHR prohibits human trafficking, and Article 13 requires states to provide a domestic remedy for violations of ECHR rights; whilst section 3 HRA 1998 requires domestic courts to give effect to primary and subordinate legislation in a way which is compatible with Convention rights.
In essence, it was the Claimant’s case that, if she was found to be a victim of trafficking, the domestic law relating to each of her claims should be interpreted in a purposive manner so as to ensure her right to compensation as guaranteed by the Trafficking Convention and the ECHR.
In what is thought to be one of the first High Court judgments concerning the definition of trafficking, HHJ Hampton took into account the eleven indicators of forced labour published by the International Labour Organisation (ILO). She found that six of those indicators were present in Ms Ajayi’s case, namely abuse of vulnerability; withholding of wages; abusive working and living conditions; intimidation and threats; exposure to excessive overtime and engagement in deceptive practices.
HHJ Hampton then, by reference to Article 2.1 of the Trafficking Directive, found that “the act, means and purpose” necessary to establish trafficking were present in Ms Ajayi’s case, in that:
- once Ms Ajayi arrived in the UK, she had been harboured, or control over her had been transferred, to the Abus from Mrs Abu’s sister (the act);
- this had been done through coercive means and abuse of vulnerability, which the judge recognised could (and did in this case) involve subtle psychological bonds such as the expectations of the Abus, Ms Ajayi’s past experience, the parties’ social background and cultural expectations, and Ms Ajayi’s vulnerable immigration position (the means);
- the purpose of the arrangement was to exploit Ms Ajayi’s services for limited payment.
The judge therefore concluded that the Defendants had abused Ms Ajayi’s position of vulnerability to keep her in a position of effective economic servitude, and thus that she was a victim of trafficking. Her decision in this respect is important, in that it recognises that a trafficking situation can arise where subtle and often unspoken intimidation, based on an individual’s vulnerability and cultural expectations, can lead her to be “chained without physical chains”.
Ms Ajayi’s claim for the minimum wage extended back over nine years, and had not been issued until some ten years after her employment commenced. Such a claim would usually be statute-barred beyond a period of six years back from the date of issue. Ms Ajayi, however, relied on section 32(1)(b) of the Limitation Act 1980, which provides that where any fact relevant to the claimant’s right of action has been deliberately concealed from her by the defendant, the period of limitation shall not begin to run until the claimant has discovered the concealment, or could with reasonable diligence have done so. Section 32(2) provides that deliberate concealment covers a situation where a defendant has deliberately committed a breach of duty in circumstances where it is unlikely to be discovered for some time.
HHJ Hampton concluded that the Abus had deliberately withheld from Ms Ajayi the fact that they were representing to the Home Office that they were complying with UK laws. They did so in circumstances where they knew Ms Ajayi was unable to read, write or sufficiently understand English to comprehend the terms and conditions documents she signed and which were sent to the Home Office each year, purporting to show that she was being paid the minimum wage. They were also, the judge found, aware that they were obliged to pay the minimum wage to Ms Ajayi. In such circumstances, the entirety of Ms Ajayi’s claim for the national minimum wage had been brought in time, and she was awarded almost £180,000 in back pay.
Protection from Harassment Act
Ms Ajayi also brought a claim under the Protection from Harassment Act 1997 in respect of incidents stretching back over the course of her employment. HHJ Hampton found that the only acts which satisfied the test of “oppressive and unacceptable” conduct were those occurring over around two months at the end of Ms Ajayi’s employment, namely confiscating her keys, the terms of the letter of dismissal (which stated that Ms Ajayi was required to leave the house as soon as possible, failing which the police would be called), dumping her belongings outside on the street, and locking her out of the house. In doing so, she noted that Ms Ajayi was a vulnerable young woman, dependent on the Abus for her immigration status, who had no money and nowhere to go.
In assessing compensation for this course of conduct, the judge had regard to the Vento guidelines, and concluded that the appropriate award for anxiety and distress was £30,000. This is an unusually high award for claims of this type, and is likely to reflect Ms Ajayi’s extremely vulnerable position at the time of the acts of harassment, and her status as a victim of trafficking. An additional award of £9,000 was made in respect of the psychiatric harm suffered by Ms Ajayi as a result of these events.
Claims for compensation brought by victims of trafficking do not fit easily into domestic common law or statutory causes of action. Often they have been brought as discrimination claims, which can be difficult to establish as the courts have held in numerous cases that any discrimination is on the ground of the worker’s vulnerability, rather than their race or national origin. The two-year “backstop” on unauthorised deductions claims brought in the employment tribunal has given rise to difficulties in claiming the minimum wage going back over long periods. The decision in Ajayi shows that claims of this kind can successfully be brought in the civil courts using slightly different mechanisms. The seemingly absolute six-year backstop on contractual claims can be disapplied. It also demonstrates that the civil courts are willing and able to make substantial awards in respect of the anxiety and distress suffered by victims of trafficking, having regard to the European Conventions mandating that such victims are properly compensated.
Anna Beale, 11 July 2018