A victim of trafficking is entitled under the Trafficking Directive 2011/36/EU/to legal aid in legal proceedings. Accordingly, a tribunal erred in law when it failed to grant a postponement of a merits hearing to permit the Claimant to access legal aid. A victim of trafficking has a right in EU law to legal aid and the courts and tribunals must give effect to this.
A Claimant who contended that she was a victim of trafficking brought a claim in the Employment Tribunal against those whom she contended were her traffickers. She then applied to the Legal Aid Agency’s Exceptional Case Funding Regime to fund representation at the five day Employment Tribunal full merits hearing. The Legal Aid Agency refused the application on the basis that the client could represent herself and cross examine her traffickers. This was despite the fact that the client was illiterate and did not speak English, and that she contended that she had been kept in domestic servitude for over 10 years and hence was in a position of vulnerability.
The Claimant applied for a postponement of the tribunal hearing to permit her to judicially review the agency’s decision. This application was refused on the basis that legal aid for representation at the Employment Tribunal is not ordinarily available. Upon appeal to the Employment Appeal Tribunal, Shanks J granted the postponement on the basis that the Claimant was entitled to take steps in respect of the judicial review to assert her entitlement to legal representation as set out in the Trafficking Directive.
When contemplating how an employment judge would be able to hear such a case with the Claimant representing themselves, Shanks J’s reaction was, 'What a nightmare!'
The judicial review was not heard following a concession from the Legal Aid Agency that the Claimant was entitled to access legal aid.
The full judgment can be found here