Inadequacy of Remedies in Cases of Human Trafficking and Modern Slavery

AuthorBrenda Hale
PositionPresident, Supreme Court of the United Kingdom
[2019] Irish Judicial Studies Journal Vol 3(2)
Author: Brenda Hale, President, Supreme Court of the United Kingdom
In the last five years, the UK Supreme Court has heard appeals in several claims brought by
migrant domestic workers, a form of employment notorious for exploitation by
unscrupulous employers.
The law in this country recognises the problem in several ways:
depending on the form mistreatment takes, it may amount to a breach of an employment
contract or statutory employment rights, a tort, an offence under the Modern Slavery Act
2015 or under the general criminal law, and it may entitle the victim to a slavery and
trafficking reparation order under section 8 of that Act. However, in Taiwo v Olaigbe we held
that mistreatment stemming from the worker’s vulnerable immigration status did not
amount to race discrimination. This led to the closing remarks in our judgment on the
inadequacies of the present remedies for modern slavery:
It follows that these appeals must fail. This is not because these appellants
do not deserve a remedy for all the grievous harms they have suffered. It is
because the 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.
Among the problems which some of these workers have faced is that their immigration
status means that they have no right to work and therefore any contract of employment
might be invalid. However, the Supreme Court has established that any illegality entailed in
the migrant’s working in the UK is no more than the context for the alleged misconduct
and these employment claims should not be barred by public policy.
We have also held
that diplomatic immunity would cease to protect an employer from such claims when the
diplomatic posting ended.
We left open whether an employer’s participation in trafficking
might fall within the scope of ‘commercial activities’, which are excepted from immunity
So there are some
respects in which claims by victims of trafficking have become easier. But are they enough?
The UK is obliged by the Council of Europe Convention on Action against Trafficking in
Human Beings
to ensure that victims have access to compensation and legal redress.
Article 15.3 states that ‘Each party shall provide, in its internal law, for the right of victims
to compensation from the perpetrators’. Article 15.4 provides that ‘Each Party shall adopt
I am deeply indebted to my Judicial Assistant, Penelope Gorman, for her help with this paper.
Hounga v Allen and another [2014] UKSC 47, [2014] 1 WLR 2889; Taiwo v Olaigbe and another [2016] UKSC 31, [2016] 1
WLR 2653; Reyes v Al-Malki [2017] UKSC 61, [2017] 3 WLR 923.
Taiwo v Olaigbe and another [2016] UKSC 31, [2016] 1 WLR 2653 at paragraph 34.
Hounga (n 2), confirmed in Patel v Mirza [2016] UKSC 42, [2017] AC 467.
Reyes (n 2).
Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 Apri 1964) 500 UNTS 95.
Council of Europe Convention on Action against Trafficking in Human Beings (adopted 16 May 2005, entered into
force 01 February 2008) CETS 197.

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