Employers Liability & Immigrant Workers

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

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