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THE TREATMENT OF MIGRANT WORKERS: A PATCHWORK OF PROTECTION BY EDWARD KEMP

The treatment of migrant workers: a patchwork of protection by Edward Kemp was reproduced from Practical Law with the permission of the publishers. For further information visit www.practicallaw.com or call 020 7542 6664.

June was a bumper month in the developing field of claims concerning vulnerable migrant workers who are badly treated by their employers. English law offers a patchwork quilt of contractual and statutory protections. One of the challenges for advisers and representatives is identifying the most appropriate causes of action for the treatment received.

Civil remedies

In the absence of a separate tort of human trafficking, Galdikas and others v DJ Houghton Catching Services Ltd and others [2016] EWHC 1376 (QB) illustrates the wide array of possible civil remedies. It is also demonstrates the effective use of the summary judgment power to obtain a significant tactical advantage in complex litigation. The High Court entered summary judgment in favour of six Lithuanian men who were trafficked into the UK and worked on a chicken farm. The claimants were paid for the number of chickens caught rather than for the time worked at minimum rates including night rates and time spent travelling. The claimants alleged breaches of the minimum wage rates in the Agricultural Workers Order (AWO) and various breaches of the Gangmasters Rules concerning charging fees, withholding payments and failing to provide facilities to wash, rest, eat and drink.

DJ Houghton faced a real evidential difficulty establishing the number of hours and times of day and night that each claimant worked. The claimants were also able to rely on a report from the Gangmasters Licensing Authority, which had carried out a detailed inspection of DJ Houghton’s practices. The report was damning, describing Houghton as "the worst UK gangmaster ever” and it evidenced various breaches of the Gangmasters Rules. The court ordered damages in respect of the AWO and Gangmasters Rules to be assessed at a further date. With a summary judgment obtained on part of the claims, the claimants’ litigation position has undoubtedly been enhanced and the other claims for negligence, harassment and assault including damages for personal injury are proceeding to trial.

Employment Tribunal

The news in respect of the rights that migrant workers have in the Employment Tribunal was somewhat less positive. In 2014, the Supreme Court in Hounga v Allen (née Aboyade-Cole) and another [2014] UKSC 47 removed a conceptual barrier for vulnerable migrants who have come to the UK illegally by holding that the illegality defence does not defeat a complaint of discrimination. However, in Taiwo v Olaigbe and another; Onu v Akwiwu and another [2016] UKSC 31 the Supreme Court could not go so far as to hold that immigration status is a protected characteristic under the Equality Act 2010 (EqA 2010).

It was argued on behalf of Ms Taiwo and Ms Olaigbe that immigration status is a function of nationality and was so closely associated as to be indissociable from it. The Supreme Court rejected that argument on the basis that many non-British nationals living and working here do not share that vulnerability. The reason for the treatment was the particular immigration status, and the vulnerability it gave rise to, and it had nothing to do with the employees’ Nigerian nationality. Therefore, the direct discrimination claim failed. As for indirect discrimination, no-one could identify a provision, criterion or practice (PCP) that would also be applied to workers who are not so vulnerable and therefore this claim also failed.

Taiwodoes not rule out an EqA 2010 claim for vulnerable migrant workers on the right facts, but it certainly exposes the limitations of the current statutory framework. Those advising should take careful and early instructions as to what the reason for the treatment is said to be and consider whether the EqA 2010 provides the most appropriate cause of action, or whether a claim in the civil courts would be more suitable.

Before Brexit takes legal effect, another option might be to bring a claim of discrimination in respect of EU migrant status. Article 45 of the Lisbon Treaty and Regulation 492/2011 prohibit any discrimination against workers who have exercised their free movement rights by moving to and working in another EU member state. These are fundamental EU law rights and have direct horizontal effect. The Regulation prohibits direct and indirect discrimination.

In the distant past there has been some doubt as to whether such a claim could be pursued in the Employment Tribunal. In Nabadda v Westminster City Council [2000] ICR 951, the Court of Appeal held that the protection in the Race Relations Act 1976 against discrimination on grounds of nationality did not protect against denial of EU rights on grounds of nationality. In Biggs v Somerset County Council [1995] ICR 811, the Court of Appeal held that the Employment Tribunal does not have jurisdiction to hear a free standing claim on the basis of a breach of the provisions of an EU Treaty.

However, these cases precede the EqA 2010 and developments in the strength of the interpretative obligation. Further, in more recent cases such as Impact v Minister for Agriculture and Food (Case C 268/06) [2008] ECR I-2483, the ECJ has held that the principles of equivalence and effectiveness of EU rights not only have an impact on the remedies and procedural rules that a national court must apply but also on which tribunal or court has jurisdiction to hear claims for redress for breaches of EU law. As the House of Lords put it in HMRC v Stringer [2009] IRLR 677, the "informal and inexpensive procedure in the employment tribunal confers many benefits.” This still has some force given the general rule as to costs in the Employment Tribunal, even in the post-fees era.

In the seemingly limited time that remains of our membership of the EU, there is at least a prospect of revisiting the earlier case law to argue that a discrimination claim because of EU migrant status can be pursued in the Employment Tribunal. This could be one more, albeit temporary, stitch onto the quilt of available protection.

Posted: 14.07.2016 at 14:25
Tags:  Comments  Employment Law
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