Experts from HSE, the Gangmasters Licensing Authority and Durham University discuss the risks to health and safety faced by migrant workers in our monthly round table. The first of a two-part article.
Migrant workers are usually employed in high risk sectors; there are language and cultural barriers to communication and training and most of them have limited knowledge of occupational safety and health in place. Which of these issues are more frequent in the UK?
Gary: When the new countries acceded to the European Union in 2004 only three countries – the UK, Ireland and Sweden – placed very limited restrictions on migrant workers coming to operate in their country. This is why we had a disproportionately large number of people coming, particularly from Poland and the Baltic states.
The British labour market is reckoned by the OECD to be among the most deregulated labour markets in the world and this means of course that workers are much more prone to becoming vulnerable to all forms of exploitation. There are very large numbers of migrant workers here, and they are very vulnerable to exploitation. And in terms of redress, the government has also been dismantling the procedures that are available to them. For example, you now have to pay to go to an employment tribunal, which means there’s a barrier for a lot of people who just don’t have the money, even if they knew about the employment tribunal process.
That’s the situation of migrant workers. I think it’s much worse for migrant workers than it is for ordinary workers, but this is not to deny that the situation for ordinary workers in this country has been deteriorating. Over the last 20 years there’s been a weakening of the trade union movement for the sorts of reasons that people will be familiar with. The migrant workers are particularly vulnerable because they may not be familiar with the language, the framework of rights and the institutions available to help them. So you will find a much higher level of vulnerability among them.
Paul: The gangmaster licensing scheme covers agriculture and some sectors that were identified as high risk post-Morecambe Bay disaster of 2004. Now some other high risk sectors have come to the fore, but criminality knows no bounds. There have been suggestions that the gangmaster licensing process should be extended into sections of the construction, cleaning and catering sectors. While I’m not in the business of counting my wares and wanting to expand and take over the world, because the GLA is already fully occupied regulating its existing responsibilities, there seems to be part of the industry that would like wider regulation, but it’s completely diametrically opposed to this government’s current policy, which is deregulation. So I think there’s a real discussion around what is required to protect vulnerable people, and what government desire is, because I don’t think those two are fully lined up at this moment in time.
Gary: Among academics, researchers, NGOs, other regulatory bodies and the police there’s recognition that the GLA has been doing a good job within the limits of very small resources. It’s certainly the case that a number of sectors that need regulation have been identified during the last few years, and this has been partly because of the effectiveness of the GLA.
When criminal gangmasters, and of course not all gangmasters are criminal, feel the hot breath of the GLA on their shoulders one option that’s open to them obviously is to close down a business and move into an entirely new sector. And there has been evidence of companies moving out of one sector and into construction for example, because at the moment that’s not regulated by the GLA. The present situation where in the process of the Modern Slavery Bill the government has moved departmental responsibility of the Gangmasters Licensing Authority from Defra to the Home Office is regarded by many people as very unsatisfactory. This is because the Home Office is too closely associated with immigration policy and we want to separate out the issue of criminal practice in the labour market from immigration policy. It just becomes very muddled and very confusing.
Jeremy: I can say that HSE does not produce its own statistics on migrant worker employment rates, although it does monitor trends. Information from inspectors and stakeholders indicates that significant numbers of migrant workers are employed in agriculture, construction, a wide range of manufacturing activities, warehousing, catering/hospitality and cleaning, among other sectors.
Clear communication can be an issue where migrant workers with poor or little English are employed, and for this reason HSE guidance around migrant workers places significant emphasis on ensuring high standards when providing information, instruction, training and supervision.
The available research gives no clear indication that migrant workers are at greater risk of accidents than other workers. Irrespective of whether they are migrants or otherwise, workers are at greater risk of accidents in the first year of employment. HSE has taken steps to raise awareness among migrant workers who may be new to the work or workplace. These include translated web guidance available in a range of languages, with Q&A material focusing on welfare, pregnant workers’ rights and other issues known to be of concern following recent surveys by the Equality and Human Rights Commission (EHRC) in cleaning and meat/poultry processing. Migrant workers wishing to report matters of concern to HSE can do so using an interpreter if necessary.
Recognising that migrant workers may be reluctant to contact the organisation, HSE employed between 2009 and 2012 a number of outreach workers, themselves drawn from migrant communities, with responsibility for raising awareness of the role of HSE and workers’ health and safety entitlements. HSE has also produced a simple English DVD explaining basic workplace health and safety requirements, for use in ESOL classes.
In 2013 there were 2.1m people from overseas working in low-skilled occupations, and 1.2m of them were born outside the EU. Are there differences in terms of vulnerability for workers from outside the EU?
Gary: Obviously those who come from the EU have a legal right to be here, to work, live, and indeed to bring their families here. Those who come from the rest of the world come in a number of different ways, and I think I’ll just focus on those who are the most vulnerable. For example, there’s a certain degree of evidence about people who’ve been smuggled in to work in the restaurant trade, and because they’re here illegally, their employer is in a very powerful situation, and therefore are obviously even more vulnerable.
There are many who have come seeking asylum and have had their claims for asylum either refused or are simply in abeyance because it is taking so long to process them the asylum petition. There are many thousands of these people, largely from countries where there are conflicts. These are people who are much more vulnerable because legally they’re not entitled to work, but economically they’re almost forced to do because of the pitiful income they have.
The additional problem of working illegally which is not the case for all of them but it’s certainly the case for many, makes their situation even worse. It’s also probably worth mentioning that many of them, if we take for example workers from the Congo, are completely unfamiliar with the British political system and arrangements, which makes it even more confusing. If you come from somewhere like Zimbabwe at least you have some basic understanding of the way the political structures work in the UK, because they’re similar in their own countries.
Paul: The nub of the issue for me is that those people who end up in the UK illegally sometimes perversely seem to end up obtaining more rights and protection from the authorities than those who are legally entitled to be here because they are from other EU countries.
What I mean is, if you are trafficked into the country but the boroughs find out that you’re here and you are swept up, you then go into a system. Whether that system’s right or wrong is another argument altogether. But if you come across from, say, Lithuania on the promise of good work and then find yourself in a forced labour situation you almost have no form of system to be able to assist you to get out of that.
You can of course go to the authorities, but if you haven’t been trafficked across, there’s not the same national referral mechanism. If you’re an EU migrant worker you are almost on your own to be exploited as opposed to somebody who’s working in the UK from a non-EU country. In that respect, it’s a bit of a sweeping statement but that’s just my experience recently.
Jeremy: Evidence for any differences in workplace health and safety conditions for different groups of migrant workers is lacking. HSE continues to work with other regulators to further develop approaches to preventing, detecting and deterring the exploitation of vulnerable workers, whatever their country of origin.
What can employers do to minimise the language barrier problems especially in relation to health and safety
Gary: When we’re talking about smaller employers, there are many practical things that people can do to minimise language barrier problems. One of the first times I came across a group of migrant workers was working in a garden centre in Beverley in East Yorkshire. The organisation did bring somebody from the group of, I think they were Poles, to act as an informal foreman and intermediary for the workers. There was somebody who was always able to literally translate linguistically, but also translate into terms that the workers would understand. So if you can use key workers to do that who’ve got a good grasp of English, you can obviously communicate with the workers.
There are plenty of resources around employers, things like language lines, and there is the need to translate material into appropriate languages, simple leaflets and so on for information. And of course perhaps details about local advice centres can be made available to the workers at the same time, so that if people don’t feel they can talk to the company, they have other routes such as the local Citizens Advice Bureau.
So, there are lots of small scale practical things that employers can do to deal with the language barrier problem. There have been a whole series of adult education classes, for example, that have again been dismantled and cut because of the government’s austerity programme. Certainly in North Yorkshire, where I live, there were many adult education classes which were targeted specifically at migrant workers to enable them to have a better grasp of English in the working context.
Jeremy: There is no single ‘right way’ to ensure effective communication with (and among) a migrant workforce. The legal requirement is for information to be ‘comprehensible’, and effective in practice. That additionally entails good-quality supervision, and careful monitoring to ensure that the information put across during training and instruction has been clearly understood.
A number of reports during the past year have recommended strengthening the GLA’s powers and remit. However, it has been announced that from October the GLA will stop inspections of all companies applying for new licences
Paul: I can put some context to this. The Red Tape Challenge, which was the government trying to reduce red tape quite clearly, and also the austerity measures have been driven through finance. The GLA looked at ways that it could still maintain the good quality service it gives, but maybe just look at some of the areas based on risk. If there were some low risk areas that actually didn’t need a physical site visit to decide whether to grant or refuse the licence, then we decided to try that approach.
Since last October – when we introduced the new system, where there may be some occasions where we needn’t go out and do a physical site visit – over the 158 licences that have been issued there have been four occasions that have fitted into that criteria.
You could say it was an awful lot of effort by the GLA that rubbed a lot of people up the wrong way because people thought we were diluting our robust way of assessing licence applicants for not much worth. And that is perhaps one approach. The other bit is that of the licences that have come through, on four occasions when we’ve not needed to go out and do a physical site inspection, three of those we’ve been able to refuse at source because the applicant had an outstanding tax debt of hundreds of thousands of pounds, and actually wasn’t classed as a fit and proper person. In the past we’ve always gone out to see that individual, but we knew before we went out we were going to refuse the licence, so it was a bit of a waste of time and taxpayers’ money going out. The one occasion where we did grant a licence was where an organisation, a recruitment agency, had been operating very effectively and very well, and very ethically in another sector for a number of years. They came to us with a really good business model and, from the enquiries we could make in the office, we were able to determine that and not to have to go out and physically inspect.
So, we now have the discretion to do a physical site inspection or not, whereas before it was an automatic inspection. And it’s another way of making sure that we’re focusing on the high risk aspects. If anyone who isn’t known to us at all makes an application, we will go out and do a physical inspection and talk to that person. If there is any doubt at all we will always go out. So it created a bit of a furore but it was designed to reduce bureaucracy and free up a little bit of time to be able to focus on the high risk areas that we know are infiltrating the gangmasters licensing scheme.
Just very briefly, the other aspect is that even though we give a licence clearly it’s no infallible because we do revoke and we do suspend licences. So it’s a bit like a car MOT, when the car goes in it seems fit for the road at that particular time, but certain things happen with that subsequent journey. It’s not actually carte blanche we’ll stop inspection in all companies applying for new licences, that’s not the case at all.
Gary: I think that’s a very helpful explanation. I’d simply add the context of course, which Paul may find difficult to comment on because of his position. The GLA lost something like 22% of its resources in the last couple of years, and this means that the possibility of moving into other sectors is very much less likely than might otherwise be the case.
Our hope, certainly from the Forced Labour Monitoring Group which I represent, is that during the debates on the Modern Slavery Bill a number of MPs will raise the question of the resources of the GLA and its remit, and moves will be made perhaps to find a new home for it before it becomes too embedded in the Home Office. I think the Department for Work and Pensions, with its responsibility for the labour market, might be the most obvious one to look at the kind of other industrial sectors where the GLA might operate.
Paul: I’m grateful for that comment, Gary. I guess my final point would be that when I gave evidence to various joint parliamentary committees, the Modern Slavery Bill Committee and all those others, I needed to be very careful as a public servant not to lobby for more staff and an extension of powers and remit.
However, I did point out that what we’ve done to a certain extent, with the support of the industry, academics and other organisations, is strengthen protection in the area that covers gangmaster licensing. What there isn’t in construction and other potentially high risk areas is a kind of governance or regulation that could even go towards protecting people in that respect. In the non-GLA regulated sector it’s all down to the particular construction company and not everybody is that ethical. And those people in other high-risk areas are susceptible and vulnerable to slavery in the extreme, because of the fact there’s no GLA licence equivalent in those areas.
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