In 2015, a two year limit was placed on claims for unauthorised deductions from wages in the employment tribunal. As many victims of trafficking are paid nothing, or almost nothing, over many years, recovery of (at best) two years’ back pay will not fully reflect their loss. As an alternative, a claim can be brought in the civil courts for breach of the implied contractual term requiring payment of the minimum wage. A six year limitation period applies to such claims but of course many wage claims by victims of trafficking extend back still further.
Section 32(1)(b) of the Limitation Act 1980 provides a possible means of extending this six year limit. Where the Defendant has deliberately concealed from the Claimant any fact relevant to her right of action, the six years will not begin until the claimant has discovered that fact, or could reasonably have discovered it. Under section 32(2), such deliberate concealment is expressly stated to include a situation where a Defendant deliberately commits a breach of duty in circumstances where it is unlikely to be discovered for some time.
These provisions were successfully deployed in the recent case of A*  EWHC 3098. A was a domestic worker for the Defendants for almost 10 years. As in many trafficking cases, when A was brought to the UK she and was unable to read or write in English. The Defendants made A sign documents that they sent annually to the Home Office, which stated that she was paid for her work in line with the national minimum wage.
The Court found that the Defendants had deliberately withheld from A the fact that they were representing to the Home Office that they were complying with UK employment laws, when they were not. The Court also found that the Defendants knew they were obliged to pay A the national minimum wage, and therefore that they fell within the provisions of section 32(1)(b) and (2). Time only started to run when A had learned enough English to read the documents she was signing, and so her whole claim was in time.
These circumstances may apply in many trafficking cases where there is a long period of employment. The availability of this extension should always be a factor in considering the best forum for such claims.
By Anna Beale
* The case is anonymised in accordance with a court order pending determination of the Defendants’ application for a permanent anonymity order.