The unanimous judgment overturns a decision by the court of appeal that had deprived a young Nigerian domestic worker of an employment tribunal award against her former employer.
The woman is believed to have been 14 when she arrived in Britain in 2007 under a false identity and was granted a six-month visitor’s visa. Arragements for the trip have been made by her employers. The family, the court said, employed the girl for 18 months unpaid, to look after the family’s children in the home. Serious physical abuse was inflicted on her and she was consantly threatened that if she left the home, she would be imprisoned because her presence in the UK was illegal. After 18 months the family forcily evicted the girl, who was then 15, from their home, and thereby dismissed her from the employment.
In due course the woman issued a variety of claims and complaints against her employers in the employment tribunal. The one claim which the tribunal upheld was her complaint of unlawful discrimination on racial grounds.
The employers were ordered to pay £6,187 compensation.
The court of appeal said that to pay the award would be to condone the illegality of her arrival in the UK and therefore the worker should not be compensated.
But the Supreme Court overturned the appeal by arguing that "The facts disclose that [the family employing the worker] were guilty – or close to being guilty – of trafficking [the worker] from Nigeria to England. The UK authorities are striving in various ways to combat trafficking and to protect its victims".
Aidan McQuade, the director of Anti-Slavery International, said: "We are happy that the court recognised that trafficked people have the right to claim damages from their traffickers even if their status in the UK is irregular.
"The court emphasised that the UK needs to honour its obligations under international law and protect the rights of victims of trafficking irrespective of their immigration status.
"This has been a problem for a long time and the UK authorities continue to treat non-UK and non-EU victims differently. This judgment sends a signal that people need to change the approach to this issue. If someone is coerced or forced into an illegal employment, they are victims of crime and their rights should be protected."
Paul Heron, a solicitor at Public Interest Lawyers, which represented Anti-Slavery International, said: "We are delighted that the supreme court has held today that the defence of illegality does not bar the appellant’s claim against her traffickers. Whilst she did enter the UK illegally, she did so as a result of being trafficked here as a child.
"It is only just, then, that she should not be barred from bringing an action to recover damages against the very people who were responsible for her trafficking."