MISS I ZARKASI v MS LUISA ANINDITA & MR MENG TSE TAN [2012] UKEAT 0400_11_1801

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2012] UKEAT 0400_11_1801Case No Appeal No. UKEAT/0400/11
Between
MISS I ZARKASIAPPELLANTMS LUISA ANINDITA & MR MENG TSE TANRESPONDENT
Before
Mr Justice LangstaffDate 18 January 2012
[1]APPEARANCES For the Appellant MR PETER OLDHAM (One of Her Majesty's Counsel) Instructed by: North Kensington Law Centre 74 Golborne Road London W10 5PS For the Respondents MR RICHARD OWEN-THOMAS (of Counsel) Direct Public Access Scheme SUMMARY JURISDICTIONAL POINTS – Fraud and illegality RACE DISCRIMINATION Comparison Direct An Employment Tribunal rejected a claim by an Indonesian domestic worker who had freely and voluntarily participated in arrangements to enter the UK by pretending to be someone else, so that she could work for the Respondents, for rights based on the contract of employment on the basis it was illegal from the outset. She claimed to have been trafficked. Held : that the ET correctly refused to consider whether that enabled her to obtain compensation in respect of a breach of rights dependent upon the contract. Also rejected was her complaint that the ET were wrong to compare her with others who had no right to stay or work in the UK, and that it should have concluded that but for her immigration status (dependent on her nationality) she would have succeeded in her claim. THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT) Introduction This is an appeal from a decision of an Employment Tribunal at London South, which dismissed a number of claims raised by the Claimant on the ground of illegality, and claims in respect of racial discrimination upon the basis that there was no evidence that the hypothetical comparator would have been treated any differently. The case concerns a Claimant who alleged that she had been the victim of human trafficking. In essence her case before us, echoing in many but not all respects the way in which she advanced her claim before the Tribunal, was that therefore the Tribunal should have taken that fact into account before determining that the contract of employment that she had made could not be enforced because to rely upon it would be to rely upon a contract rendered illegal by law. There has been no earlier decision exactly in point, though we are told that there has been at least one Tribunal case, in which the illegality point never arose, but in which the facts may be seen to have some similarities with the present case. The facts[2]With that introduction, we turn to the facts in outline. The Claimant's case was very different from that which was put forward by the Respondents. Ultimately the Tribunal were to say that they had very little confidence in the Respondents' case, but they did not go so far as to say they had no confidence, nor did they expressly say that the Tribunal accepted everything that the Claimant claimed. She was Indonesian. She lived in a village in Indonesia, and her sister worked for a Mrs Ratnawati in Jakarta. The Claimant met Mrs Ratnawati's daughter when she came to Jakarta to be married. The daughter wanted someone to help her out domestically there, and the Claimant did so. She was told that if she came to the United Kingdom, where the daughter was resident, she would earn more than she did in Indonesia. She obtained an identity card, a passport and a tourist visa. These were obtained in part by her going twice on her own to the relevant passport office in Jakarta, having agreed to assume a false identity, impersonating someone called Eni Rahayu. After one abortive attempt she obtained a passport in that name.[3]On 15 March 2007 she flew with Mrs Ratnawati to London on a Cathay Pacific flight, and was picked up by the daughter, the first Respondent, and her husband, the second Respondent, from the airport here. At that time the first Respondent was heavily pregnant, and gave birth four days later. It became part of the Claimant's duties to care for the child. Although she had been promised that she would have a room of her own, space was such that she slept on the sofa. She performed domestic tasks, and after November 2008 regularly took the son, Joshua, who had been born shortly after she arrived, to his playgroup. She was paid, but the sums were less, it might appear, than the minimum wage, being £100 per month for the first year, rising to £120 per month for the second year, and in April 2009, the last full month during which she worked, £150, to which might be added presents and bonuses amounting to approximately £1,000.[4]The Tribunal were to find that she had a mobile phone, which was used and the bill in respect of which appears to have been paid for by the first Respondent, and that an arrangement had been reached between them whereby the Claimant could obtain an up-to-date, modern mobile phone in replacement of the original. She had agreed to stay for two years. At the expiry of the two-year period she indicated that she wished to return to Indonesia. An argument developed; the first Respondent wished her to remain. They reached an agreement whereby she would stay until August 2009. The Claimant, however, who regularly took Joshua to the playgroup, as we have described, spoke to another person there, and having done so decided to pack a small bag, to leave the place where she had been living and to go to a trafficking charity. The Tribunal said that she had never felt threatened into staying, but she wanted to go home to Indonesia and was upset when she was told that she would have to stay for longer. The Employment Tribunal[5]The findings of the Tribunal relevant for the argument before us are these. At paragraph 107 the Tribunal found that the arrangements for the Claimant to obtain documents in a false name had been made and indeed orchestrated by Mrs Ratnawati. At paragraph 108 it said this:
"We find that the Claimant willingly agreed with Mrs Ratnawati in Jakarta that she would come to the UK for a period of two years, as she would be earning more money. She was promised her own room in the Respondents' house. We find that the Claimant was well aware that a passport and visa were being obtained in a false name, and we further find that she knowingly participated in the deception. The Claimant was aware that she did not have a passport in her own name. She knew that she was obtaining entry to the UK using false papers. We reject any suggestion that the Claimant was somehow hoodwinked by Mrs Ratnawati and was not aware of the unlawfulness of her entry. However we further find that that deceit was orchestrated by Mrs Ratnawati."
[6]The Tribunal went on to find that it accepted that the Claimant was not provided with her own room as promised but was expected to sleep on the sofa, and accepted the Claimant's evidence as to the money and gifts that she was paid. At paragraph 111 it added this:
"We accept as an almost inevitable fact that the Claimant at least initially had limited social contact. She did not speak much English and was in a poor financial position. We do not accept that the Claimant was imprisoned in the Respondents' house in the sense of being locked in. However we do find that she was discouraged from going out, and that the word 'dangerous' was used in that connection. Indeed it was potentially dangerous for the Claimant to have a social life, dangerous to the Claimant and to the Respondents, because of the Claimant's status in the UK."
[7]At two later paragraphs the Tribunal described the Claimant as having been exploited. At paragraph 127, the first of those, it explained what it understood and the sense in which it was using that term:
"There is no doubt from our findings that in general terms the Claimant was exploited. She was young, relatively poorly educated and vulnerable in a foreign country in which she had no right to be, let alone to work. The evidential difficulty is that there is no evidence whatever before us as to how the Respondents treated any other individual at all."
[8]That was in respect of a reference to comparators. The Tribunal dealt with the matters raised before it under two heads: first, it addressed the question of illegality; secondly, it addressed the question of whether there had been a breach of race relations legislation. As to illegality, at paragraph 120 it said this, which constitutes further findings of fact in respect of the Claimant's participation in her presence in the United Kingdom:
"There cannot be any doubt that the Claimant was in the UK illegally, and also that her employment by the Respondents was illegal. We have found that the Claimant was fully aware that she was travelling on false documents and was a willing participant in that scheme. She did not suggest that she was forced to come to the UK. She did so voluntarily. […] We are considering the matter on the basis that the Claimant knew that she was here illegally and must therefore be taken to have known that she should not be working here."
[9]The Tribunal were addressed by the representative then acting on behalf of the Claimant as to the effect of the Council of Europe Convention on Action against Trafficking in Human Beings , signed at Warsaw on 16 May 2005 ("the Convention"). It was the contention for the Claimant that the Tribunal should give practical effect to the Convention by permitting her, despite the unlawful nature of the contract that she had entered into on the face of it, to succeed in the employment claims she brought. Those claims were for unfair dismissal, for unlawful deduction from wages, and two lesser matters of failing to provide itemised pay statements and failing to provide a statement of terms and conditions within two months of first employment. All of those depended upon there being a contract of employment. So far as the minimum wage was concerned, the contract extended to those who were under its terms a worker (see Section 1 of the National Minimum Wage Act 1998 ): but that also necessarily requires a contract to be entered into.[10]What the Claimant was arguing was that the Convention was set up to prevent and combat trafficking in human beings and to protect the human rights of the victims of trafficking, to design a comprehensive framework for the protection and assistance of victims and witnesses, and to promote international action co-operation on action against trafficking in human beings (see Chapter 1, Article 1). In Article 15 the Convention provides that each state that is a signatory should provide in its internal law for the right of victims to compensation from perpetrators. As it happens, the Convention itself suggests, though does not require, one way that some compensation might be achieved; that is, by Article 23, which refers to the possibility of confiscation to deprive the perpetrators of trafficking of the proceeds of criminal offences, and by Article 15(4) for the possibility that funds thus acquired might form a general fund out of which victims might be compensated or assisted socially and with social integration. The submission was that the contract, though accepted to be unlawful (an acceptance and finding that has not been challenged in these proceedings before us), was nonetheless capable of being enforced by the Employment Tribunal if it concluded that the Claimant was truly a victim of trafficking. Instead of deciding that issue, however, what the Tribunal did was regard the Convention as irrelevant to the law that it had to apply. It did so in these terms:
"121. Much was made by [Counsel for the Claimant] about the Convention. As something of an aside, we comment that at times during this hearing we felt that the Tribunal was being drawn too far into considerations of terminology in the Convention and the Guidance associated with it rather than concentrating upon the issues under the various heads of jurisdiction engaged in the claim. It would of course be wrong to ignore the Convention altogether, because [Counsel for the Claimant] based part of his submissions on its provisions. 122. In summary, [Counsel]'s submission was that the Claimant was a victim of trafficking as defined, that under the Convention the UK should provide her with a remedy, and the Tribunal should provide that remedy, irrespective of any concerns about illegality. In other words, the provisions of the Convention trumped any illegality. As a matter of principle, we do not accept the submission that the Tribunal should provide the remedy. The Employment Tribunals are creatures of statute. Jurisdictions are endowed on the Tribunals by statute or delegated legislation. The Tribunals do not have any inherent jurisdiction. If the United Kingdom is to provide individuals who fall within the provisions of the Convention with redress then it must be up to the legislator to make the appropriate provision. It is not up to this Tribunal. 123. We therefore go back to the question of illegality unencumbered by any influences of the Convention. […]"
[11]The Tribunal then went on in the same paragraph to categorise the contract as one that was unlawful as being proscribed by law when it was first entered into, a situation that they recognised correctly, as counsel submit to us in this Appeal Tribunal, as falling within the second category identified in the case of Hall v Woolston Hall Leisure Ltd [2001] ICR 99 CA. They commented:
"123. […] The Claimant did not have the right to work in the UK and any contract was therefore illegal when entered into. Although no legislation was cited to us it is common knowledge that it is a criminal offence to employ an individual who does not have the right to work in the UK. The Claimant did not have that right, and the contract of employment must therefore be at least impliedly prohibited by statute. Irrespective of that, we have found that the Claimant was aware of the wrongness of her actions and so satisfies the conditions as to participation in an illegal venture."
[12]The Tribunal turned to look at the question of the claims made by the Claimant under the Race Relations Act . They were claims of direct discrimination, indirect discrimination and harassment. It was accepted by Mr Owen-Thomas, as counsel for the Respondents then as he is before us today, that those claims were not based upon a contract and therefore were not affected by any illegality of the contract if there was such illegality, properly described. It is common ground between us that that is what the authorities (in particular, see again Hall ) provide. The Tribunal considered that the appropriate comparator for the Claimant was:
"129. […] someone who shares the same characteristics as the Claimant but is not Indonesian. The most important characteristic is that the Claimant was in this country illegally and was employed illegally. Has the Claimant proved facts from which the Tribunal could conclude that there had been unlawful discrimination on racial grounds by reference to a hypothetical comparator? In our judgment she has not done so. There is no evidence from which we could conclude that if she had come from, for example, Brazil or Nigeria but was otherwise in the same position that she would have been treated any more favourably. A British national is not in our judgment an appropriate hypothetical comparator because such a person must share the same characteristics as the Claimant apart from nationality. A hypothetical British national would have the right to live and work in the UK."
[13]The Tribunal went on, having decided that the hypothetical comparator would share the characteristics of being here in the UK illegally and being employed illegally whilst here, to ask what were the grounds for any discrimination as alleged. In their judgement:
"130. […] the reason for the exploitation of the Claimant was not because she was Indonesian but because she was in the UK illegally and without the relevant work permit. We fully accept that a British national will have the right of residence in the UK and will also be entitled to work. Therefore such a person will not be in a position to be exploited. However, we consider that to be the wrong criterion. The real answer to the 'why' question in this case is the immigration and work permit position of the Claimant. That in our judgment is not a racial ground within the meaning of the Race Relations Act 1976."
[14]With further observations to the same effect the Tribunal concluded that the claim of race discrimination was to be dismissed. The grounds of appeal[15]Before us argument has centred upon the question of the illegality of the contract. Little was submitted in respect of the race relations claim, though for completeness we shall deal with it. It became plain that Mr Oldham QC did not feel it appropriate upon consideration to press that claim, though he did not formally withdraw it. As to illegality, however, he submitted that in essence the doctrine of illegality is a recognition of public policy. Public policy must necessarily include respect for and taking proper account of the international obligations to which the state has contracted observance. Moreover, if one traces the origins of the doctrine of illegality in contract back, the basic principle was stated in important terms by Lord Mansfield CJ in Holman v Johnson [1775] 1 COWP 341 at 343 (see the citation of the relevant passage by Lord Goff of Chieveley in the case of Tinsley v Milligan [1994] 1 AC 340 ). That deserves repetition here:
"The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiffs' own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis."
[16]Lord Goff went on to say in the following paragraph (see page 355 of Tinsley ) that it was important to observe that as Lord Mansfield made clear, the principle was not a principle of justice; it was principle of policy. However, Mr Oldham draws attention to the requirement, for such it may appear in the last few words of the citation from the Judgment of Lord Mansfield, that both parties should be equally in fault. The requirements of the Convention against human trafficking are such that a Tribunal ought to have decided whether or not the Claimant was a victim of such trafficking. It did not do so; it did not do so because it saw no point in doing so, from the approach it took. Had it come to the conclusion that the Claimant was a victim of trafficking, then it could have granted her the compensation that Article 15 suggested she should be granted by state action, and that would be consistent with the law on illegality because she could not be regarded as equally at fault if she were the victim of trafficking and the Respondents the perpetrators of it. He criticised the Employment Tribunal for making no attempt to deal with the question of whether each party here was in equal fault ("in pari delicto") or not. In the case of Hall he accepted that at paragraphs 30 and 31 in the Judgment of Peter Gibson LJ a classification of illegal contracts was set out. He said this:
"30. In two types of case it is well-established that illegality renders a contract unenforceable from the outset. One is where the contract is entered into with the intention of committing an illegal act; the other is where the contract is expressly or implicitly prohibited by statute. […] 31. In a third category of cases a party may be prevented from enforcing it. That is where a contract, lawful when made, is illegally performed and the party knowingly participated in that illegal performance. […]"
[17]At paragraph 32 it is observed that in the employment field the test of knowledge plus participation has also been recognised for illegality to be a defence. That appears in context, as Mr Oldham QC was constrained to accept, to have been a reference to the third class of case. Neither counsel was able to point to any case or dictum that suggested that the recognised policy by which a contract was rendered unlawful in the second class of case might yield to or be influenced by policy considerations drawn more generally as, for instance, from international obligations.[18]As to international obligations, the case of Hall itself had regard to the Equal Treatment Directive of 76/207/EEC; see paragraphs 48 and 56, in which Mance LJ, concurring in the result, said:
"Whether and to what extent Mrs Hall can in the present case claim compensation for her financial loss is a matter of domestic law, which depends upon the construction of the Sex Discrimination Act 1975 and the application of principles of common law."
[19]We interpose to note that Mrs Hall's case was that she had been dismissed by reason of her pregnancy. The contract under which she had been employed had been performed by her employer in such a way as not to account to the Revenue for tax and National Insurance contributions due upon her wages. It had been argued that as a result she should not be permitted to bring a claim for the statutory tort under the Sex Discrimination Act . The Court of Appeal did not accept that argument, although this Tribunal and indeed the Employment Tribunal at first instance had done so. Continuing at paragraph 56:
"However, both the construction of the Act and the identification or development of relevant common-law principles may be influenced by sources which do not, presently at least, form part of domestic law. They are, first, Council Directive No. 76/207/EEC, and secondly, article 6 of the [Convention for the Protection of Human Rights and Fundamental Freedoms]."
[20]He then drew attention to the close relationship between the Directive and the Sex Discrimination Act 1975 . Thus, submits Mr Oldham, the court can appropriately take into account international obligations that do not, at least currently, form part of the domestic law. Recognising that the Equal Treatment Directive was so bound up with the rights to sex equality considered to be fundamental to the European Community and therefore necessary to the fulfilment of the United Kingdom's obligations as a member pursuant to the European Communities Act 1972 , and therefore arguably in a different category from international conventions such as the Convention in this case, he took us to the case of R v Secretary of State for the Home Department ex parte Brind and Ors [1991] 1 AC 696 . That was a case in which the question that arose was the validity of directives issued by the Secretary of State under the Broadcasting Act 1981 , which required the Independent Broadcasting Authority and the BBC not to broadcast any words spoken by persons appearing or being heard on programmes where they represented organisations that were proscribed under the Prevention of Terrorism (Temporary Provisions) Act 1984 or the Northern Ireland (Emergency Provisions) Act 1978 . The argument was that the discretion was wrongly exercised because it failed to take into account the obligations of the United Kingdom as a signatory, at that stage, to the European Convention for the Protection of Human Rights and Fundamental Freedoms . At page 748 in the speech of Lord Bridge of Harwich, having set out that the UK as a party to the Convention had obligations to secure the rights under the Convention within its borders, he turned to the impact of that upon the issue before the court:
"Hence, it is submitted, when a statute confers upon an administrative authority a discretion capable of being exercised in a way which infringes any basic human right protected by the Convention, it may similarly be presumed that the legislative intention was that the discretion should be exercised within the limitations which the Convention imposes. I confess that I found considerable persuasive force in this submission. But in the end I have been convinced that the logic of it is flawed. When confronted with a simple choice between two possible interpretations of some specific statutory provision, the presumption whereby the courts prefer that which avoids conflict between our domestic legislation and our international treaty obligations is a mere canon of construction that involves no importation of international law into the domestic field. But where Parliament has conferred on the executive an administrative discretion without indicating the precise limits within which it must be exercised, to presume that it must be exercised within Convention limits would be to go far beyond the resolution of an ambiguity. It would be to impute to Parliament an intention not only that the executive should exercise the discretion in conformity with the Convention but also that the domestic courts should enforce that conformity by the importation into domestic administrative law the text of the Convention and the jurisprudence of the European Court of Human Rights in the interpretation and application of it."
He went on in company with those others of their Lordships who sat upon the case to dismiss the appeal.[21]The case of Vacante v Addey & Stanhope School [2005] ICR 231 concerned the case of an asylum seeker who was given limited leave to remain in the United Kingdom on condition he did not obtain employment without permission from the Home Office. In breach of that condition he obtained employment with the respondent employer. When he was subsequently dismissed he made a complaint of unlawful race discrimination under section 4(2) of the Race Relations Act 1976 . An Employment Tribunal rejected the employer's submission that the claim was unenforceable because the applicant's contract of employment was illegal. The Employment Appeal Tribunal, however, allowed an appeal by the employer and remitted the case to the Employment Tribunal to determine the facts on whether the applicant's claim was so closely connected with his illegal conduct that no claim should lie. The Tribunal to which the case had been remitted found that the complaints were inextricably linked with his illegal conduct. The applicant again appealed, raising the ground, which was new, that for English courts or Tribunals to permit a case of race discrimination to be defeated on the ground of illegality would be inconsistent with Council Directive 2000/43/EC, the introduction of which, as it happened, post-dated the Tribunal's decision, which had since been implemented in domestic law by subsidiary legislation. The Employment Appeal Tribunal had ruled that it was not open to the applicant on authority to take the directive point at that stage.[22]The case says little, as we see it, about the approach to be taken to an international instrument, since the instrument was not in force at the relevant time, but the parties refer us to, and for completeness we mention here, the conclusion in the words of Mummery LJ, with which Slynn LJ and Brooke LJ agreed:
"33. The application of the Hall approach to this case is comparatively straightforward. The case is clearly different from Hall and similar cases, in which (a) the illegal conduct was that of the employer in the performance of the contract, and (b) the involvement of the applicant was one of awareness of the employer's illegal conduct and in deriving benefit from it. It is not a case where the applicant had been working in good faith in the belief that it was lawful for him to work (see Still v The Minister of National Revenue [1998] 1 FC 549, a Canadian case concerning entitlement to state benefits during employment which was believed to be lawful but was unlawful for want of a work permit). 34. As for the illegal conduct here, (a) it was that of the applicant, (b) it was criminal, (c) it went far beyond the manner in which one party performed what was otherwise a lawful employment contract, (d) it went to the basic content of an employment situation, work, (e) the duty not to discriminate arises from an employment situation which, without a permit, was unlawful from top to bottom and from beginning to end. 35. It was not a case of innocent oversight or an acceptable misunderstanding. The applicant had been clearly informed in writing of the true position. Instead of making an application for a work permit, he obtained work with the employer by making a false statement. The applicant was solely responsible for his illegal conduct in working for the employer and creating an unlawful situation on which he had to rely in order to establish that it was a duty not to discriminate against him."
On that basis he found there was no error of law.[23]Mr Oldham QC argues that upon that basis the Employment Tribunal here should have considered if the claim fell within the scope of the Convention; that is, whether or not the Claimant had been trafficked. If it decided that she had been, it should have applied a test of illegality which permitted the Claimant to exercise the rights guaranteed under the Convention. It would be repugnant, he submitted, to the Convention that she could not enforce a right that a non-trafficked person would be able to enforce. The Employment Tribunal should have determined whether the applicant was in all the circumstances bringing a case in which the Tribunal should hear the claim on the merits, having regard to Article 15(3) of the Convention and the need for victims to be compensated by perpetrators.[24]He raised in support of those submissions, and separately, arguments that the Tribunal did not but should have applied Article 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms , and Article 6 of that Convention, which we shall term "the Human Rights Convention". Article 4 proscribes slavery and forced labour. It is plainly closely allied to the Convention; indeed, the Convention may be thought to give greater content to the terse words of the Human Rights Convention. He argued by reference to the cases of Siliadin v France [2006] 43 EHRR 16 and Rantsev v Cyprus & Russia [2010] 51 EHRR 1 that effective protection for Article 4 rights was required to be assured by a Tribunal. On paper the way he expressed the point was that there was no doubt that the exploitation of domestic servants might engage Article 4: in Siliadin a domestic servant had been subjected to forced labour because of the exploitation of her vulnerability and her perception of a threat. He noted that in Rantsev the court had held (see paragraph 284) that:
"[…] the spectrum of safeguards set out in national legislation must be adequate to ensure the practical and effective protection of the rights of victims or potential victims of trafficking."
[25]Trafficking, it should be added, had been found to have happened in that case. He argued that to shut out the Claimant from pursuing what would otherwise have been a viable claim before the Employment Tribunal by reliance upon the doctrine of illegality offended against Article 6 because it impeded the right of access to a court. As to that, he recognised as he did in respect of the Article 4 argument that neither argument as such had been put to the Tribunal below. He says with some force that a Tribunal should have in mind the rights guaranteed by the Human Rights Convention under its obligations to do so as a public authority under the Human Rights Act 1998 . He accepts, however, that as a general rule this Tribunal will not permit a new argument to be put for the first time on appeal at any rate if it might require the finding of further facts. So far as Article 6 is concerned, the way in which he expresses the point would require the Tribunal to make findings of further facts and therefore, as it seems to us, he should not be permitted and cannot be permitted now to rely upon that aspect of his arguments even if, which we do not accept, they had any substantial force in this case. The argument as to Article 4, however, we see as ancillary to and supportive of the arguments that generally he has made in respect of the Convention.[26]As a second ground of appeal, though taken sotto voce as we have described, the Claimant submits that the proper comparator for the Tribunal to have adopted was not someone who had no right to reside or work in the United Kingdom but was someone who was British and therefore did have those rights, and secondly, that the adoption of the "reason why" test was inappropriate when, on the authority of James v Eastleigh Borough Council [1990] 2 AC 751 , as recently explained by the Supreme Court in the R v Governing Body of JFS [2010] 2 AC 728 case, it should have been "but for". Discussion[27]The first matter for us is to ask what is meant by holding that illegality is a matter of policy. It seems to us clear that if legislation makes a particular form of contract unlawful at the outset and throughout its existence (that is, if it falls within the second ground of Hall ), then the policy is clear. A court should not as a matter of public policy permit any party to enforce a contract that was and always has been illegal. To do so would be to give recognition to such a contract as having legal effect, when according to the law it had and should have had none. That policy is clear and clearly applicable here. To accept that the Tribunal was in error of law in the approach that it took at paragraphs 121-123 of its decision would be to render a contract valid that legislation holds otherwise to be invalid. It seems to us that that cannot be achieved by reference to an international instrument which (see Brind ) is no part of the actual law of the United Kingdom. There is no question here of exercising a discretion even though that was the subject matter of Brind , still less any question of construing a statute. There is no room for holding lawful a contract as a matter of discretion or interpretation where the law must be accepted to be and is before us clear that it is not.[28]Therefore the question becomes whether the second category in Hall permits any exception within domestic law. As we have already observed, we have been shown no decided case nor persuasive dictum that would permit that. As a matter of justice it might be felt that if the Tribunal had concluded that the Claimant had indeed been the victim of trafficking, then it would be an additional injustice to her for that Tribunal not to have recognised that she had rights against the perpetrator. This view, broadly accepting that illegality is a question of policy, at one stage appealed at least to the judicial member of this Tribunal but upon reflection is flawed. It assumes that the policy that is referred to is the policy of justice, which Lord Mansfield was at pains to point out it could not be and whose approach was endorsed in Tinsley itself. In any event, even if that concept be restricted to those particular cases, as Mr Oldham would argue, the position here was not that the Tribunal was the only way in which the Claimant could obtain an effective remedy.[29]As Mr Owen-Thomas pointed out in his submissions in reply, there are many remedies available in domestic law for remedying the position of someone who has been the victim of servitude amounting to forced labour as trafficked. She might claim against the perpetrator for false imprisonment, trespass, assault or harassment. In doing so the damages awarded if her claim was well founded would include the value of her labour as she had been promised but as she had not received, assuming that those were the facts, together with the potentiality of aggravated and exemplary damages. Further, he submitted that she might be entitled to criminal injuries compensation or to receive the fruits of any compensation order resulting from a sentence after conviction of the perpetrator in a criminal court. In argument Mr Oldham QC accepted that if there were no contract, there might arguably be room for a quantum meruit and a claim based upon that, though one might see that that too might fall foul of the doctrine of illegality, and we express no concluded view upon it.[30]However, it is plain, and we accept, that the Employment Tribunal route is not the only route by which the victim of trafficking, if it be established, can claim recompense. Moreover, coherence in the law has a value. The law is coherent if it treats as unlawful any contract that the state declares in legislation to be unlawful and prevents any person from benefiting by making a successful claim based upon that contract. Any claim here by the Claimant would have to be based upon such a contract. It is coherent, as it seems to us, that the Claimant should be entitled to exercise such remedies as the law elsewhere provides. The application of the Convention does not require in terms that the Employment Tribunal regard as lawful to some extent that which Parliament has in legislation decreed not to be.[31]Accordingly, we cannot accept the submission that the Tribunal here was in error in refusing to consider the terms of the Convention further than it did. The reasoning it gave for that decision may be open to criticism. In saying that the Tribunals had only a statutory jurisdiction and no inherent jurisdiction, it may have missed the point that the jurisdiction here is based upon there being a contract. That imports the concepts of the common law, but the decision was in our view correct. The approach taken on the facts of Vacante by Mummery LJ at paragraph 34 of his decision, cited above, seems to us applicable by analogy with the situation as described by the Tribunal here. We should say, however, for future reference that we have thus far been dealing with a contract that upon the findings of the Tribunal was freely entered into, in which the Claimant was a volunteer. This is not a case in which any question of duress could be said to arise. Whether, and if so to what extent, the involuntary adherence by a Claimant who is or probably has been trafficked to a contract comes into question, we would accept, might arguably raise considerations that do not arise for our consideration here. To that extent, but to that extent only, we recognise the limits of our decision.[32]However, we should go further. If we have been persuaded that the Tribunal did make an error of law in its approach to the Convention and could and should have made conclusions specifically about trafficking, we would nonetheless have concluded that upon the facts as found by the Tribunal the claim here would not fall within Article 4 of the Convention. Article 4 provides that for the purposes of the Convention, "trafficking in human beings" shall mean:
"(a) The recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force of other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the removal of organs; (b) The consent of a victim of "trafficking in human beings" to the intent of exploitation set forth in subparagraph (a) of this Article shall be irrelevant where any of the means set forth in subparagraph (a) have been used."
[33]The findings of fact made by the Tribunal preclude the recruitment, transportation et cetera of the Claimant by means of the threat, or use of force or other forms of coercion, of abduction, and almost certainly of fraud. There was arguably some deception in the position of the bed, whether in a bedroom of her own or on a sofa. Might it be said that the abuse of power or of a position of vulnerability applied here? Nothing else would be capable of coming within the definition in 4(a), and "exploitation" as defined there was not "exploitation" as the Tribunal meant it, which was largely economic exploitation.[34]The matter here is complicated by the fact that the Claimant had been recognised by the Border Agency as having been trafficked. However, the Tribunal had expressly said that it would make its own findings. It is those findings to which we must have regard, and not the views of others; findings made upon evidence that by definition those others did not hear and consider. Mr Oldham says, and we accept, that an holistic approach should be taken to trafficking as there described. It is plain that there may be a fine line that can be drawn on occasions between those who because of their economic circumstances are constrained to work for wages that others would regard as paltry and demeaning, but which nonetheless represent the fruits of contracts freely entered into, and those who are truly in slavery or servitude. It is right that fine distinctions should not be made, but we cannot see in the findings of fact made by the Tribunal any of the necessary elements of lack of voluntary acceptance that underlie Article 4. As Mr Owen-Thomas points out, consent may be referred to in 4(b) as irrelevant, but this was not a case of consent; on the findings of fact by the Tribunal, it was one of willing participation. It has none of the characteristics that in the immigration field are all too common in trafficking cases, even though it shares some of the features; that is, somebody from beyond the jurisdiction who by deception enters the jurisdiction and whose labour is used in return for what to us is a pittance.[35]As it seems to us therefore, the Tribunal made findings that were inconsistent with it reaching a conclusion that here the Claimant was a victim of trafficking as holistically understood in Article 4. We accept Mr Owen-Thomas' submission that in this case on its own particular facts, whatever may be the situation in other cases, the Tribunal was right therefore to come to the conclusion it did as to the illegality of the contract. If it should have taken into account features of the Claimant's position, those features would have necessarily included her voluntary acceptance, at a time when she was under no compulsion whatsoever, of a contract that she knew to be fully illegal and deceptive, as a result of which she could not knowingly reveal her occupation and presence within the UK. As to, finally, the arguments put to us in respect of Article 4 of the Convention, we have answered those by the comments that we have made in respect of the Convention. Race Relations Act[36]The Tribunal was entitled to conclude that the proper comparator was somebody who had no right to work or remain in the United Kingdom. As was pointed out to Mr Oldham QC, in an exchange in respect of which he had no answer, if the suggestion be right that the proper comparison was a British national who had therefore rights to remain and work, it would follow that in any situation in which a person within this jurisdiction, lawfully or not, who was precluded from taking employment sought to enforce rights in respect of an employment that had actually been obtained, there would be discrimination; the very provisions precluding that person from such work would be unlawfully discriminatory. That cannot be right.[37]Next, the "but for" test depends upon centrally what aspect one is singling out as necessary for the conclusion that is reached. The issue is always the issue of fact; that is, as to the grounds upon which the discrimination occurred. The Tribunal asked why it was that the alleged discrimination occurred; it concluded as a matter of fact that it had nothing to do with the nationality of the Claimant. That precluded a finding that it was because of her nationality. This was not a case, as was James , in which the decision was made for some apparently neutral feature of the Claimant's life with which her nationality was inherently associated. Accordingly, we reject those arguments. Rightly, Mr Oldham QC did not persist in them. Conclusion[38]It follows that in conclusion we have decided that there is no error of law in the Tribunal's decision, and the appeal must be dismissed, sympathetic though we are in general terms to the position of those who truly might be said to be the victims of trafficking.