Migrant workers from Eastern Europe as well as the more traditional countries like Africa and Asia work in a wide range of industries in the UK. These workers are often paid pitiful wages, living in poor accommodation and in fear of victimisation or dismissal if they complain.
Rakesh Patel, head of Thompsons’ Migrant Workers’ Unit, looks at the main employment law issues affecting these workers.
Right to Work
Although some migrant workers are legally entitled to work in the UK, many more are here on an unauthorised basis either because they do not have permission to be here or because they have no right to work here.
The employment rights of workers who do not have permission to work in the UK are severely restricted. Employees with illegal contracts may be prevented from asserting their contractual and statutory employment rights, and are barred from bringing claims such as unfair dismissal or unlawful deduction from wages.
It is easier for illegal migrant workers to bring discrimination claims because they do not depend on having a contract of employment.
The courts approach these cases by considering whether the claim is so closely linked with the illegal conduct of the claimant that the court could not allow them to recover compensation without appearing to condone what they have done.
The following two examples illustrate the principle
- Ms Hall alleged she was unfairly dismissed due to sex discrimination. Entirely unrelated to this, the employer had falsified her payslips so they showed a lower net payment than she actually received. Ms Hall queried this but was told that “it’s the way we do business”. The court held that even though the contract was illegal, she could claim sex discrimination because her claim was based on a statute rather than the contract. Her acquiescence in her employer’s failure to deduct PAYE had no bearing on the discrimination claim. (Hall -v- Woolston Hall Leisure Ltd 2000).
- Mr Vakante, a Croatian asylum seeker, applied to work at the defendant school without a work permit, by falsely stating he had a right to work in the UK. He made 17 allegations of race discrimination against the school. His claim failed because the court said that his illegal conduct was so bound up in the claim that allowing it would appear to condone his illegal behaviour (Vakante -v- Addey and Stanhope School 2005).
Employment agencies and gangmasters
Agency workers are workers provided to a third party by an agency to work on agreed tasks. With few rights, worse terms and conditions than permanent staff and little employment protection, agency workers are among the most vulnerable in any workplace. A large proportion of agency workers are also migrant workers.
The law around agency workers is both complex and fluctuating and the following provides only a brief overview.
Employment Agency Regulation
Employment Agencies are regulated by the Employment Agencies Act 1973 (as amended) and the Conduct of Employment Agencies and Employment Business Regulations 2003.
The 2003 regulations distinguish between:
- employment agencies that introduce workers to a user who then contracts directly with the worker and
- employment businesses that enter into contracts with workers and supply their services to the user organisation.
Many of the obligations are, however, common to both. For instance, the provision that agencies cannot charge workers except in limited circumstances (such as theatrical agencies).
Unfortunately some agencies try to avoid the law by including general clauses into agreements entitling them to make deductions from the worker’s wages for items such as transport, equipment, uniform and meals.
Nor can they withhold or threaten to withhold a worker’s pay on any of the following grounds:
- that the user has not paid the employment business
- that the worker cannot produce a time sheet authenticated by the user
- that the worker has not worked during a period other than that to which the payment relates
- any other matter within the control of the employment business.
If an employment agency or employment business fails to comply with any of its obligations under the 2003 regulations, it may be liable under both criminal and civil law. Members should seek legal advice if they suspect a breach of these regulations.
Regulation of gangmasters
A “gangmaster” is an individual or business that supplies workers to agriculture, horticulture, shellfish gathering and food processing and packaging (commonly referred to as a labour provider); uses labour to provide a service in the regulated sector such as harvesting or gathering agricultural produce; or uses labour to gather shellfish.
It is illegal to supply workers to the regulated sector without a Gangmasters Licensing Authority (GLA) licence. To successfully apply for a licence, labour providers need to meet the legal requirements in areas such as health and safety, tax and pay.
It is a criminal offence for a gangmaster to operate without a licence within the regulated sector. A public register listing the licensed gangmasters is available online or by telephoning the GLA. It is also a criminal offence for someone to use an unlicensed gangmaster. Licences can be removed from gangmasters (such as Baltic Work Team Ltd in Cornwall whose licence was recently revoked for exploiting Bulgarian workers) who do not comply with the mimimum standards required to obtain a licence.
Employee or Self Employed?
Most workers can be divided into two main categories: an “employee” who provides their services under a contract of services or a “self employed” person who is an independent contractor engaged under a contract for services. The question whether someone is an “employee” or “self employed” can be very difficult, particularly for agency workers.
The status of agency workers is important, however, because it dictates the employment rights available to them. Generally “employees” have more rights than “self employed” workers. So, for example, only employees have the right to claim unfair dismissal and statutory redundancy payments.
The courts have developed several tests and the following are two of the most important (which must be present in all cases to be an employee):
- control – the employer must exercise some day to day control over the worker
- mutuality of obligation – there must be an obligation on the employer to provide the work and a corresponding obligation on the employee to perform it.
Even if both of the above basic criteria are satisfied, the worker concerned may still not be an employee for employment law purposes. Other factors must be considered, none of which may be essential in any particular case but which will together allow a picture to be painted from which the question can ultimately be decided. What is certain though is that the traditional basic tests of "control" and "mutuality of obligation" remain fundamentally important.
Agency workers – employed or self employed?
Unfortunately the courts have themselves been in some disarray when it has come to applying these tests to agency workers.
The Court of Appeal said in both Dacas -v- Brook Street Bureau (UK) Ltd & anr (2004) and Cable and Wireless plc -v- Muscat (2006) that as a general (but not invariable) rule a temporary agency worker supplied by an employment agency to an end-user client could be an employee of the client and will be neither self employed nor an employee of the agency itself.
In the case of Consistent Group Ltd -v- Mrs K Kalwak and ors (2007), however, the Employment Appeal Tribunal held that a worker was an employee of the employment agency which supplied them to an end-user client even though it was the end user rather than the agency who exercised control over the actual operation of their work.
Migrant Workers’ Unit
Thompsons has opened a new Migrant Workers’ Unit, dedicated to assisting with individual cases, providing seminars and talks, assisting unions with recruitment initiatives and providing leaflets / publications in the most widely spoken languages.
Main employment rights
Migrant workers working legally in the UK have the same employment rights as other workers, including:
- the right not to be unfairly dismissed
- the right to a written statement of employment terms
- the right to enforce a contract of employment
- the right to an itemised pay slip
- the right not to have unlawful deductions made from wages
- the right to the national minimum wage
- the right to working time protection
- the right to health and safety protection
- the right to take part in trade union activities
- the right not to suffer a detriment for making a public interest disclosure.