Employers Liability

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 Employers Knowledge

• In Hewison there is no evidence that the employer
  knew of the claimants 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 claimants
  involvement in it.
• Employers duties under Section 8 Asylum and
  Immigration Act 1996.

12
Employers Knowledge (Contd.)

• Employers 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 claimants 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 claimants 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 claimants 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 claimants
  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 claimants intentions? Would
  he have brought the family over in any event if
  he intended to stay?
• Disclosure of the familys residence arrangements
  and enquiries with the Home Office are key.

22
General Damages

• What is the claimants 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 claimants
  condition and whether any other factors may be
  influencing the claimants 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 Insurers 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
  claimants 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.