Employers Liability & Immigrant Workers

1. Employers Liability & Immigrant Workers Rowena Byrne-Jones LLB LLM ACII MCIArb ACILA Head of Complex Liability Teceris

2. Introduction • Influx of European and non European workers • Increased number of immigrants working in large numbers throughout the UK • Common occupations include construction, agriculture, hospitality and general service sectors (inc. cleaning and catering)

3. Introduction (contd.) • Claims for personal injury may involve issues of liability, causation and quantum investigations bespoke to claims from immigrant workers • Very much a developing area of the law • Practical approach and detailed investigations

4. Defending Claims • Consider first whether a claimant is entitled to work in the UK and whether the claim is valid. • Where is permission to work required? (See Appendix 1 at rear of handout) www.workpermit.com • Registration requirements with Immigration and Nationality Directorate of the Home Office • Failure to do so is a breach of Section 24 Immigration Act 1971. • The claimant may therefore be an illegal immigrant.

5. Defending Claims (contd.) • Courts provide a strict approach in determining whether a claimant is an illegal immigrant. • See Regina v Immigration Officer ex parte Chan (1992) re innocent provision of false documents and the requirements of paragraph 4 (b)(2) of Schedule 2 Immigration Act 1971. • In addition, Regina v Secretary of State for the Home Department ex parte Ku (1995) where the Home Office issued a work permit in error. • In the first case the claimant was complicit in obtaining false documents, in the second he was not.

6. Defending Claims (contd.) • Even if the claimant can show he entered the country legally what work restrictions are contained in the permit? • The important consideration for Insurers is that if it can be established that the claimant is without the required papers the likelihood is that the claimant has been working illegally and it may be possible to defend at least part of any claim on the grounds that it is based on illegality.

7. Arguments of Illegality • Can the defendant argue that the claim should be disallowed on the grounds that it is based on an illegal contract of employment? • Issues of public policy • See Vakante v Addey & Stanhope (2004) EWCA 1065 and dicta of Mummery LJ. • Courts balance the seriousness of the illegality with the basis of the claim.

8. Illegality and Liability • Does the illegality bar the claim entirely? • Is the illegality involved in the contract of employment central to the basis of the claim itself? • See Vakante – an Employment Tribunal case – the illegality affected the entirety of the contract creating an employment relationship that was not entitled to exist at all.

9. Illegality & Injury Claims • Yet, Vakante is an employment tribunal case to be distinguished from cases of personal injury. • In Vakante in the absence of a valid contract of employment there could be no duty on the employer not to discriminate. • This is not the case with injury cases where the employer will retain a duty to take reasonable care not to injure the claimant even if he is not a legal employee. • See Hewison v Meridian Shipping Services PTE Ltd (2001) EWCA Civ.1821

10. Hewison • Hewison deliberately concealed a medical condition in order to secure employment in the merchant navy. Despite this he recovered from his injuries suffered in that employment. • Could he recover for loss of earnings and loss of congenial employment? See dicta of Clarke LJ • Should be contrasted with Major v Ministry of Defence (2003) EWCA Civ 1433

11. The Employer’s Knowledge • In Hewison there is no evidence that the employer knew of the claimant’s wrongdoing. But what if the employer does know and is in fact the prime mover? Should the employer be entitled to rely on an illegality defence? • See Hall v Woolston Hall Leisure Ltd (2000) 11CR 99. • Dicta of Peter Gibson LJ on consideration of fact and degree. Look at the nature of the illegal conduct, the seriousness of it and the claimant’s involvement in it. • Employer’s duties under Section 8 Asylum and Immigration Act 1996.

12. Employer’s Knowledge (Contd.) • Employer’s Defences Under Section 8(2) - What documentation has the employer actually seen? • Has he been deliberately duped? Is this a genuine case of no knowledge? Is there an employment agency relationship to consider? • Consider ex turpi causa – this is not a defence for a defendant – see Mansfield CJ in Holman v Johnson (1775) 1 Cowp as quoted in Hewison by Ward LJ. • Look at each case on its own merits – can we confine the illegality to the claimant’s conduct alone? • See Appendix 3 – rear of handout

13. Causation • It is submitted that a claim for loss of earnings based upon illegality be defended but if the claimant were to provide a plausible excuse for his illegality he may still be awarded loss of earnings. • Even so, the illegality of the contract of employment should provide a robust argument against a loss of earnings claim. • It should be argued that where any illegality impinges upon heads of claim advanced by the claimant it should be treated as doing so no later than the time that the illegality would have been discovered by the employer or the relevant authorities in any event.

14. Loss of Earnings • What would the claimant have done in the future – this is a key question • Speculation and counter speculation • What is the country of origin? • Would the claimant have returned there? • Such arguments can also be applied to other special damages heads of claim, DIY and services, care and the like.

15. Loss of Earnings (Contd.) • See Amakye v Aramark Services Plc (unreported) CCRTF 98/10337/12. • Ghanaian lady due to leave UK within two years, but for the accident which left her with serious injuries. She could not return to work and could not reasonably return to Ghana. • Should her earnings be calculated with reference to what she would achieve here or alternatively what she would have achieved in Ghana? • See dicta of Buxton LJ. • She was entitled to what she would have achieved in Ghana and not that which she would have achieved in the UK.

16. Amakye (Contd.) • If a defendant can put forward arguments as to what the claimant would have realistically done or might have decided to do before the accident the value of the claim may go down. • Can the claimant identify any comparators? Did he come to this country alone? • Build a picture of family and social arrangements in addition to the basis of employment – what are your credible alternatives to the schedule presented

17. Evidence • Buxton LJ gave dicta in Amakye to support the fact that the claimant must prove the extent of their loss. • What is the claimant actually able to prove? On what basis would a Court proceed? • Can relevant parts of the claim be struck out for lack of evidence?

18. Future Loss • Start with Blamire v South Cumbria HA (1993) PIQR • Where there are imponderables and speculation the multiplier and multiplicand approach should not be followed. • Also consider Chase International Express Ltd v McRae (2003) EWCA Civ 505;(2004) PIQR 21 • Chase gave judgement on the degree of uncertainty regarding a claimant’s employment history, multipliers should not be applied and further loss of congenial employment awards should not be made.

19. Future Loss (Contd.) • The Appeal was successful. • The claimant’s work history was disjointed and sporadic – there was no evidence that he would have successfully gained further employment. • Blamire applied and the claimant should have been awarded a rounded sum • The types of jobs that the claimant said he could not do were the type that he would not have been able to do with increasing age in any event. • There was no loss of congenial employment.

20. Future Loss (Contd.) • Also consider Golborough v Thompson & Crowther (1996) PIQR Q86. • The claimant was injured in a fall from a ladder during his employment with T as a roofer. • The case supported the rejection of the multiplier and multiplicand approach when there were imponderable factors as to the claimant’s future employment prospects. The burden of proof remained with the claimant throughout. • In addition, use arguments of “failure to remain” not only in respect of all LOE claims but all other financial loss heads of claim. • NB – Care - Court awards on UK commercial rates?

21. Loss of Opportunity to Remain • Amakye was awarded £5,000 for loss of opportunity to return to Ghana. • See Buxton LJ obiter. • If a claimant is awarded such a sum will he seek to bring over the remainder of his family? • Unless the claimant is an illegal immigrant then the Claimant would more than likely succeed here. But, what are the claimant’s intentions? Would he have brought the family over in any event if he intended to stay? • Disclosure of the family’s residence arrangements and enquiries with the Home Office are key.

22. General Damages • What is the claimant’s motivation – to remain in the UK? • Are there issues of psychiatry? Does the claimant claim feelings of alienation? Do the psychiatric injuries really arise from the accident? Could such “feelings” arise from alternative concerns and worries not consequent upon the claim? • Letters of instruction to the medical expert should always include comment on the claimant’s condition and whether any other factors may be influencing the claimant’s condition. • Seek specific disclosure of medical records if necessary.

23. Do we Pay Illegal Claims? • If the Insurer knows of illegality – should the relevant authorities be made aware? • What is the Insurer’s legal duty? • Incrimination of the Insured? • Be clear as to which heads the payments cover when making offers. • Ratification by the Court.

24. Do we Pay Illegal Claims (Contd.) • Insurers stand to make savings where the claimant’s losses can be restricted since he should not gain from his own illegal act of working. • However, this raises a conflict. See earlier for Section 8 and Section 8(2) Immigration Act 1996. • We need to notify the Insured of the likely consequences of running an illegality defence. • Should we add Insurers as a second defendant? • Are we checking licensing requirements – Gangmasters Licensing Act 2004 (effective from 1 April 2005).

25. Conclusion • Documents are key. A thorough investigation is required not only with the Insured but with local and central government departments. Lines of enquiry into background and family are imperative. Use disclosure rules to best advantage. • Establish early the state of knowledge of the parties to consider the appropriate defences. • Do not forget to consider quantum in parallel. • Tactical decisions should be made early.