Zarkasi v Anindita and another

JurisdictionUK Non-devolved
Judgment Date2012
Date2012
CourtEmployment Appeal Tribunal
Employment Appeal Tribunal Zarkasi v Anindita and another UKEAT/400/11 2012 Jan 18 Langstaff J (President), Mr D Norman, Mrs D Palmer

Employment - Contract of employment - Illegality - Foreign worker colluding with employer to enter UK on false passport - Claims of unfair dismissal and failure to pay minimum wage - Worker claiming to be subject of human trafficking - Whether claims precluded due to illegality - Council of Europe Convention on Action against Trafficking in Human Beings (2005) (Cm 7465),

art 4

The claimant, who was Indonesian and did not have her own passport, agreed with her employer in Jakarta to work for her in London for two years as a living-in domestic help and that, in order to enter the United Kingdom, she would obtain a passport by assuming a false identity. When working in London she was paid less than the minimum wage, and at the end of the two years when she asked to return to Indonesia she was told that her employer wished her to stay longer. She left the household and brought claims of unfair dismissal and unlawful deduction of wages. An employment tribunal found that the claimant had come to the United Kingdom voluntarily and that she knew she was working illegally, and it rejected a contention by the claimant’s representative that the effect of the Council of Europe Convention on Action against Trafficking in Human Beings (2005)F1 was to allow her to succeed in her claims in spite of the illegality of the contract. The tribunal held that the claimant could not rely on the contract of employment, as it was illegal when entered into, and it dismissed her claims.

On an appeal by the claimant—

Held, dismissing the appeal, that if legislation made a particular form of contract unlawful at the outset and throughout its existence a court should not as a matter of public policy permit a party to enforce it, since to do so would give it recognition as having legal effect when it had none; that such a contract could not be rendered lawful as a matter of discretion or interpretation by reference to an international instrument that was not part of United Kingdom law; that it was coherent to treat as unlawful any contract declared to be so by legislation and to refuse to allow the claimant from making any claim based on her employment contract but to allow her to exercise such remedies as the law provided elsewhere; and that, further, in any event, on the facts found by the tribunal, the claimant did not fall within the definition of a trafficked human being in article 4 of the Convention against Trafficking, since those findings, including that she was a willing participant, precluded the necessary elements of force or coercion or lack of voluntary acceptance (post, paras 27, 30, 3235).

Hall v Woolston Hall Leisure Ltd [2001] ICR 99, CA applied.

The following cases are referred to in the judgment:

Hall v Woolston Hall Leisure Ltd [1998] ICR 651, EAT; [2001] ICR 99; [2001] 1 WLR 225; [2000] 4 All ER 787, CA

Holman v Johnson (1775) 1 Cowp 341

James v Eastleigh Borough Council [1990] ICR 554; [1990] 2 AC 751; [1990] 3 WLR 55; [1990] 2 All ER 607, HL(E)

R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696; [1991] 2 WLR 588; [1991] 1 All ER 720, HL(E)

R (E) v Governing Body of JFS (United Synagogue intervening) [2009] UKSC 15; [2010] 2 AC 728; [2010] 2 WLR 153; [2010] PTSR 147; [2010] 1 All ER 319, SC(E)

Rantsev v Cyprus and Russia (2010) 51 EHRR 1

Siliadin v France (2005) 43 EHRR 287

Tinsley v Milligan [1994] 1 AC 340; [1993] 3 WLR 126; [1993] 3 All ER 65, HL(E)

Vakante v Governing Body of Addey and Stanhope School (No 2) [2003] ICR 290, EAT; [2004] EWCA Civ 1065; [2005] ICR 231; [2004] 4 All ER 1056, CA

No additional cases were cited in argument.

APPEAL from an employment tribunal sitting at London (South)

By a decision sent to the parties on 14 April 2011, the tribunal dismissed claims, inter alia, of unfair dismissal and unlawful deduction of wages by the claimant, Miss I Zarkasi, against her employers, Ms Luisa Anindita and Mr Meng Tse Tan, on the ground that her contract of employment was tainted with illegality. On 25 May 2011 the claimant appealed on the ground that the tribunal ought to have had regard to the provisions of the Council of Europe Convention on Action against Trafficking in Human Beings when considering the issue of illegality and to have held that even though the contract was unlawful it was capable of being enforced by the tribunal if the claimant was found to be a victim of trafficking.

The facts are stated in the judgment.

Peter Oldham QC (instructed by North Kensington Law Centre) for the claimant.

Richard Owen-Thomas (instructed by the Direct Public Access Scheme) for the respondents.

18 January 2012. LANGSTAFF J (PRESIDENT) gave the judgment of the appeal tribunal.

Introduction

1 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 para 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 para 108 it said:

“We find that the claimant willingly agreed with Mrs Ratnawati in Jakarta that she would come to the United Kingdom 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 United Kingdom 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...

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