In the second in a series of blogs discussing modern slavery, Benjamin Croft looks at the role compensation plays in the rehabilitation of victims and as a deterrent to those exploiting workers.
The most immediate priority for victims of modern slavery is to escape from those exploiting them, to recover their freedom, dignity and humanity.
The various international Conventions, EU laws and domestic provisions on trafficking, slavery and forced or compulsory labour seek to provide a framework to allow them to do that.
It is essential that victims of slavery get the best legal advice, from immigration, criminal and public lawyers to negotiate that protective framework and to be able to enforce their rights; for instance to obtain some form of status in the UK or to secure appropriate housing and support.
Many are not aware that they can also use the law to seek compensation for the wrong they have suffered and thereby hold to account the trafficker or those individuals or companies who are responsible for, and profited from, the exploitation.
There are a number of reasons why compensation claims can help victims of modern slavery to recover their dignity and humanity.
Compensation can help rebuild lives: enabling access to education, training, medical treatment and therapy. Legal action also punishes the perpetrators of trafficking and labour exploitation by hitting them where it hurts and acting as a deterrent.
In a recent working paper, the organisation Focus on Labour Exploitation said that “the ability of victims to access legal remedies promotes their rehabilitation, prevents re-trafficking and contributes to the punishment of traffickers”. The very act of deciding to sue an abuser can be the first step to taking back power.
As Klara Skrivankova of Anti-Slavery International states, “It is a process whereby a victim becomes the subject of justice rather than the object of it – he or she is not just a passive actor in the process of bringing perpetrators to justice”.
Compensation claims take a variety of forms including claims in the employment tribunal and the civil courts.
There are a number of claims that can be brought, which may include unlawful imprisonment, intimidation, assault and trespass to the person, negligence, and breach of contract, as well as statutory compensation claims under the Gangmasters (Licensing Conditions) Rules, the Protection from Harassment Act, or employment laws relating to unfair and constructive dismissal, unpaid wages and overtime, unlawful deduction of wages, and discrimination.
As with other types of compensation claims, the aim of damages is as far as possible to put the individual in the position in which they would have been had the wrong not taken place.
Types of losses for which damages can be claimed include physical and psychiatric injuries or impairment, pain, suffering and loss of amenity, and past and future financial losses.
Civil claims offer certain benefits over the other forms of compensation. In particular, unlike criminal compensation orders or the new slavery and trafficking reparation orders introduced in the Modern Slavery Act 2015, civil claims can be brought by the victims themselves and do not require a successful prosecution of the perpetrators or rely on the initiative of the prosecuting authorities for their success.
There are also fewer limitations on bringing civil claims than claims under the Criminal Injuries Compensation Authority (CICA) scheme, and the overall levels of compensation awarded are likely to be higher. The CICA scheme is publicly funded and therefore an award will not have the deterrent effect of a successful civil claim which would be enforced directly against the perpetrator.
In other words, whereas CICA awards are paid by the State, successful civil claims result in the abuser paying both the compensation as well as the legal costs.
Surprisingly there have been only a few modern slavery cases brought in the UK, with only one reported successful civil claim against traffickers.
The majority of claims that have been brought relate to claims by those in domestic servitude against their employers (which accounts for 9% of the trafficked persons according to recent National Crime Agency figures) rather than claims by victims of forced labour in other sectors such as the agricultural, fishing and construction sectors (accounting for almost 30% of trafficked persons).
Clearly, civil compensation claims of many victims of modern slavery are not yet being brought in the courts. Why is that? In the final blog in this series, we will explore the possible reasons for this and the prospects for increasing the use of civil claims to empower and compensate victims of modern slavery.