Ajayi v Abu & Anor (Rev 1)

Human trafficking may be established without physical restraint or threats of violence. The court must assess the act, means and purpose of trafficking, including whether control was obtained through abuse of vulnerability, deception or psychological coercion, and whether the purpose was exploitation.

Indicators of forced labour are evaluated cumulatively and in context. A worker’s dependence on an employer for accommodation, immigration status and livelihood may create vulnerability. Where an employer deliberately conceals minimum-wage breaches, limitation may be postponed under the Limitation Act 1980. Harassment requires conduct which is oppressive and unacceptable, assessed as a course of conduct.

The claimant, a Nigerian national, worked and lived as a domestic worker in the defendants’ family home from 2005 until 2015. She alleged trafficking, forced labour, underpayment of the national minimum wage, breach of contract and harassment.

A previous single-issue decision determined that the defendants could not rely on the family-worker exemption under regulation 57(3) of the National Minimum Wage Regulations 2015. The trial court therefore had to determine the claimant’s hours, payments and limitation issues, whether she had been trafficked, whether the defendants’ later conduct amounted to harassment, and the resulting damages.

1. Trafficking. The claimant was trafficked within the meaning of the Trafficking Convention. The relevant analysis involved three elements: the act, the means and the purpose. Harbouring or transfer of control occurred after the claimant arrived in the United Kingdom. The means consisted of subtle psychological coercion, abuse of vulnerability, deception and dependence, despite the absence of physical force or confinement. The purpose was exploitation of her domestic and childcare services for limited payment.
2. The court considered the ILO indicators of forced labour. Abuse of vulnerability, excessive working hours, withholding of wages, abusive working and living conditions, intimidation and threats, and deception were established to varying degrees. The indicators had to be assessed together and in the factual context. Physical restraint was unnecessary.
3. National minimum wage. The claimant’s contractual 30 hours were salaried hours and her additional work was time work under the applicable regulations. Under section 28(3) of the National Minimum Wage Act 1998, the defendants bore the burden of proving remuneration. Their failure to maintain records, as required by section 9, meant that the court had to estimate both hours and payments. The claimant’s usual hours were assessed at 60 per week until September 2014 and approximately 20 per week thereafter. Payments made for visas, courses, books and similar items could not be offset, subject to the applicable accommodation rules.
4. Limitation. Although the six-year primary period under section 5 of the Limitation Act 1980 applied, section 32(1)(b) and (2) postponed time because the defendants deliberately concealed their breach by representing to the Home Office that they were complying with employment and wage law, while knowing that the claimant could not understand the documents she signed.
5. Harassment. Applying the approach in Veakins v Kier Islington Ltd (2009) EWCA Civ 1288 and Majrowski v Guy’s and St Thomas’ NHS Trust (2006) IRLR 695, conduct had to be oppressive and unacceptable, rather than merely unattractive, unreasonable or regrettable. The confiscation of keys, dismissal letter requiring departure from the only home available, and eviction by placing belongings on the street formed a course of conduct amounting to harassment.
6. The claimant was awarded £39,000 general damages for injury to feelings and psychiatric injury, together with £3,500 special damages for recommended cognitive behavioural therapy. No labour-market disadvantage award was made. The parties were invited to agree the national-minimum-wage calculation and interest.

The judgment records that a previous single-issue decision by Master McCloud dismissed the defendants’ reliance on regulation 57(3) of the National Minimum Wage Regulations 2015. That decision was stated to be under appeal, but the defendants remained bound by its findings for this trial.