Deducting from migrant workers

Kate Ewing, a solicitor in Thompsons’ Employment Rights Unit, looks at one common practice that often affects migrant workers – the unlawful deduction of wages

The expansion of the European Union over the last few years has resulted in large numbers of migrant workers arriving in the UK from Eastern Europe and elsewhere.

Although EU citizens have every right to live and work here, they are much more likely to find themselves in temporary and transient jobs than other workers. Often recruited in their home countries by unlicensed employment agencies, they have much less protection than those in more permanent employment relationships.

For unregistered workers, the abuses are even greater.

Harsh realities of the UK

Once in the UK, the realities for migrant workers can be harsh. Wages are low and many employers ignore minimum wage, working time, paid holidays and other employment rights laws such as the right to a written statement of terms and conditions. 
Making deductions from wages for accommodation, tools, transport and other work equipment is a common practice.

A Lithuanian builder was paid just £8.80 for a 39-hour week after deductions. His colleague, who had worked a 70 hour week, was paid £66 and another had £228 deducted in one week for tool hire.

Legal reality

It is illegal for employers to charge for finding work. Nor are they allowed to retain workers’ passports and identity documents. It is also unlawful to charge workers for personal protective equipment, unless the contract states clearly that deductions will be made if the worker fails to return the equipment.

Deductions for accommodation must not exceed £4.30 per day for workers paid the national minimum wage (NMW). If a worker is paid more than the NMW then deductions for accommodation must not reduce their wages to less than £4.30 below the daily NMW rate.

This ensures that workers are paid a basic minimum of the NMW less £4.30 per day and prevents employers appearing to pay workers above the minimum wage, but driving down their wages with excessive deductions for the provision of accommodation.

Case law has clarified that deductions for heating and lighting must be included within the daily maximum. Employers cannot deduct the permitted maximum for accommodation and make further deductions for other bills.

Nor can they make other deductions unless they are stipulated in the contract, the worker agrees to the deductions being made, or the deductions are required by law (national insurance and tax for example).

In each case the worker should understand why the deduction has been made and must not have been coerced into the agreement.

But, given the vulnerabilities of many migrant workers, it can be difficult to establish whether the worker willingly agreed to deductions, understood what they were agreeing to or whether they understood their rights.

If an employer exceeds the maximum deduction allowed, workers can make a claim in an employment tribunal for unlawful deduction of wages.

Workers can also contact the National Minimum Wage helpline if they think their employer is underpaying them. HM Revenue & Customs has the power to investigate complaints about non-compliance with the NMW and issue enforcement notices.

These legal actions and remedies are, however, not available to most migrant workers. Faced with a charge of £90 to register under the Worker Registration Scheme, many choose to remain unregistered. Rogue employers prepared to give work to unregistered workers will inevitably exploit the fact that the law does not protect them.

Gangmasters Licensing Authority

Migrant workers may also not be aware that the Gangmasters Licensing Authority (GLA) requires certain labour providers to have a licence. These include anyone who provides labour for horticulture, fish processing, gathering shellfish, dairy farming, or the packaging or processing of these products (it does not however include construction, one of the biggest employers and abusers of migrant labour).

So if an employment agency, for example, supplies workers to any of these sectors, they need a GLA licence. It is illegal for a provider to operate without one. The GLA keeps a register of all licensed labour providers on its website (www.gla.gov.uk).

Importance of trade unions

Most migrant workers do not belong to a trade union and consequently may not be aware of their employment rights. They have no ready access to advice, often because of language barriers and, because many do shift work, it is difficult for them to find and attend language classes or union meetings and advice surgeries.

Nevertheless, trade union representatives play an important role in ensuring that migrant workers are aware of their rights by providing advice and guidance.

Union recruitment and organisation campaigns are ensuring that rogue employers are increasingly being identified and challenged over illegal practices, including by supporting workers in bringing grievances for poor treatment and (when possible) claims for compensation in tribunals and courts.

Migrant Workers Unit

Thompsons’ Migrant Workers Unit, headed by Rakesh Patel, provides legal advice and representation to trade unions and their members on the issues raised above and more.

The Unit can provide training sessions for trade union representatives and has a number of fact sheets in various languages providing information on key employment rights.

The fact sheets can be obtained from the Publications Department at Thompsons’ Head Office on 0207 290 0000.

Case study – Hungarian poultry workers

Thompsons acted for 20 Hungarian UNITE members who were supplied by a major employment agency in the East Midlands to work at Cranberry Foods, the UK’s second largest poultry producer.

An unlicensed gangmaster recruited the workers in Hungary. They were forced to pay an arrangement fee of £350 to secure the work, which was deducted from their pay packets without their consent. Accommodation charges of up to £40 a week were also deducted. They were paid just £3 an hour.

They did not speak English and were originally not registered under the Worker Registration Scheme. This meant that their employment was illegal and that they were unable to rely on key rights. The collective and individual claims they had could only be pursued for the period that they had been registered.

The men and women were housed in former RAF camps surrounded by barbed wire, and were ticked in and out each day by their gangmasters. They worked long hours to the point of collapse and were often threatened with violence. They were told they would lose their jobs if they complained. Threats were also made against their families in Hungary.

Some were injured at work but were not given medical treatment. When a roof fell in and their clothing was saturated they were made to continue working. When a Thompsons lawyer met the workers none of them had more than £5 each.

Claims for abuse of employment rights were pursued on behalf of nine of the workers but these were withdrawn when a settlement was reached.

Case study – Filipino nurses

Thompsons acted for 25 Filipino nurses recruited in the Philippines to work in a private care home. They were each charged around £4,000, which was said to be for their air fare and to put them through a course in order to register them for work. The cost of the course was around £100. The air fare was no more than £500.

Most of these nurses were highly qualified. Yet they were treated by the care home as cleaners, cooks, and carers. They were locked in their rooms at night, forced to work when ill and denied any privacy. And they were paid significantly less than their British colleagues.

After one nurse contacted UNISON they were all recruited to the union and found jobs in the NHS. Their claims against the home were settled. It seems, however, that the home simply turned to India to replace them.