Written submission from Anti-Slavery International (ERB0079)

Founded in 1839, Anti-Slavery International is the oldest international human rights organisation in the world. We draw on our experience, which aims to eliminate all forms of slavery and slavery like practices globally. We work in partnership with our supporters, governments, businesses, like-minded organisations and global movements to bring about long-term, sustainable change.

Protecting workers  

• Does the Employment Rights Bill adequately safeguard the workers it seeks to protect? 
• Are there areas of employment law not covered by the Bill that weaken workers’ protections? 

Anti-Slavery International welcome the once-in-a-generation opportunity presented by the Employment Rights Bill to take steps to end unfair employment practices, however, we are concerned with the omission of protections for migrant workers in the United Kingdom.

The Office for National statistics show that 6.8 people born outside the UK were employed in the country in the first quarter of 2024, over a fifth of the national workforce. Migrant workers are integral to the UK’s economy yet those with insecure immigration status are highly vulnerable to labour exploitation and trafficking. In particular, migrant workers on highly restrictive Visa schemes are susceptible to exploitation due to (a) the reliance on sponsor for right to remain in the UK and (b) lack of oversight.

There have been numerous reports of instances of modern slavery and labour exploitation across labour shortage sectors in the United Kingdom such as (1) the care sector, (2) agriculture and (3) fisheries. Furthermore, labour exploitation amongst overseas domestic workers has also been well documented.

(1)    The Care Sector

The Government added the care work sector the shortage occupation list in 2021 to combat a labour shortage in the sector. Between December 2022 and June 2023, there was an 157% increase in use of the Health and Care Worker visas being granted. The Visa creates a dependency on an individual sponsor, meaning that a workers right to remain in the UK is reliant on their relationship with their sponsor, otherwise they have 60 days to find a new sponsor.

Unseen’s Who Cares? Report highlighted the 606% increase in the number of modern slavery care sector cases from 2021-22, and in 2022 18% of all potential victims of modern slavery who rang Unseen’s helpline were in the care sector. Many come to the UK searching for a better life, often paying huge fees to their recruitment agencies and employers for certificates of sponsorship, becoming trapped in debt bondage furthering vulnerabilities and the power imbalance and deepening financial control. In 2023, the average debt incurred by potential modern slavery victims was £11,800.

In 2023, a BBC Report into Modern Slavery in the Care Sector, interviewed Terri who was forced to work 20 hours a day, often for 7 days a week, working for under £2 an hour. When complaining about working conditions, the care company threatened to stop her work and cancel her Visa.

Where enforcement action against rogue employers results in removal of sponsor licences, workers can be doubly punished and left scrambling to find new work with a visa sponsor in a race against destitution, debt and the 60 day visa cancellation period.

The Migration Advisory Committee has stated that the Government has “tacitly accepted exploitation in the care sector.”

(2)    Agriculture

In 2019 a pilot scheme was opened for migrant workers to come to the UK on the ‘Seasonal Worker Visa’ (SWV) to work in horticulture. The visa means each worker is tied to a single labour provider (‘Scheme Operator’) and restricted to work in either poultry for up to three months, or horticulture for up to six months. Temporary migration programmes such as the SWV are known to have a range of risks associated with their short-term nature, the visa sponsorship tie to a single labour provider, and the limited rights afforded to migrant workers. Agriculture is also considered a labour sector at high risk of worker abuse and exploitation. The UK has expanded the scheme from just 2,500 visas in the 2019 pilot to up to a potential 47,000 visas in 2024 (including poultry).

On 9 May 2024 the government announced the scheme would be extended for another five years from 2025 to 2029, with the number of visas available for the horticulture sector in 2025 set at 43,000, with another 2,000 visas for poultry. Both government and independent reviews highlight that the scheme as currently designed puts workers at risk of serious exploitation and abuse. This includes risks at the point of recruitment, such as deception, illegal fees and high debts leading to debt bondage, and risks in the UK, encompassing violations of employment rights, unsafe accommodation, insufficient provision of work, issues around use of piece rates and productivity targets, barriers to transferring employer, and a lack of effective complaints and labour rights enforcement mechanisms.

Fundamentally, the Seasonal Worker Scheme is the responsibility of the Home Office but forms the cornerstone of the UK’s horticulture and poultry industry. They are currently poorly monitored and poorly managed by scheme operators, as evidenced by the license revocation of Ethero. This leads to substantial abuses such as those documented by the Bureau of Investigative Journalism[1]

(3)    Fisheries

Migrant fishers with a Seafarers Transit Code 7 Stamp are particularly vulnerable to labour exploitation. If they are 12 nautical miles from the UK coast they are outside of the UK jurisdiction. If less than 12 miles they are in breach of immigration rules even if they are working on UK flagged fishing vessels, in UK ports and working for UK companies that sell into the UK supply chain.

This means that they are likely to be subjected to an immigration enforcement response if they contact UK authorities, even in the case of exploitation.

Leigh Day Solicitors, acting for 3 migrant fishers in a successful claim against the Home Office outlined: “The claim highlighted how international seafarers’ charities and the media have documented numerous incidents of exploitation. Their reports show how migrant seamen on transit visas are in a distinct position of vulnerability because they have no lawful immigration status or statutory employment rights in the UK and how vessel owners rely on this position of vulnerability in their exploitation of the migrant seamen.” Migrant fishers on such visas are not even entitled to the National Minimum wage.

Currently, the scope of the Employment Rights Bill does not extend protections to migrant fishers on the Seafarer Transit Stamp visa, it is critical that the Bill is extended to migrant fishers and migrant workers more broadly.

(4)    Overseas Domestic Workers

In April 2012, the Government made drastic changes to the terms of the Overseas Domestic Worker visa, removing protections the previous regime (in place from 1998 till 2012) offered to workers to prevent forced labour and trafficking. Some of these safeguards permitted workers the right to change employers, registering any such change with the Home Office, and the right to renew their visa if they could demonstrate their labour as a domestic worker was still required.[2]

Following the changes to the visa, reports of exploitation on the Overseas Domestic Worker visa increased dramatically in 2012. This meant that exploitative employers knew that workers could not leave and look for a better job and even complaining carried the risk of being sacked and left destitute and unable to work.

Some changes were made to the terms of the visa in 2016 after the UK Government acquiesced workers should not be trapped in abusive employment. The right to change employer was reinstated but the Government did not accept that workers need time to be able to do it safely.

An independent review published in December 2015 found that ‘the underlying rationale of a right to change employer is to give [workers] a safe way out of an abusive situation, of which safe re-employment is an essential part.’ The Government disagreed and only permitted workers to change employer during the currency of their original six-month visa. They also placed continued reliance on the availability of workers to use the National Referral Mechanism for trafficking survivors.

The reality of workers fleeing abusive employers without references or possession of their passport, with merely months or weeks remaining on their visa, means that exercising their right to change employer is not accessible in practice.

The National Referral Mechanism is also not suitable for those workers whose treatment does not fit within the legal definition of trafficking or modern slavery, and who fall into a protection gap where they are at risk of further harm. In Kalayaan’s recent report “12 Years of Modern Slavery”, analysis of over 2,000 workers registering with the charity demonstrated the increase in reported abuse since the restrictions took hold in 2012, with levels remaining consistently high following the 2016 changes.[3]

Vulnerability of Migrant workers in the UK

The Anti-Slavery/Labour Rights Sector calls on the Government to amend the Employment Rights Bill in 8 key areas to ensure migrant workers are granted protections under the Bill:

Contracts​

• Statutory Sick Pay: Increase the rate of Statutory Sick Pay to the National Living Wage rate for all, including migrant workers. As noted in the Government’s factsheet on Statutory Sick Pay released alongside the Bill, up to 1.3 million low paid workers are not eligible for Statutory Sick Pay, this forces them to work when they are unwell, spreading infections, resulting in lower productivity for businesses.

• Fair Probationary Periods: Make any probationary periods proportionate to contract length for those on short, fixed term contracts, and exclude probationary periods entirely for migrant seasonal workers who arrive to work in the UK for a maximum period of 6 months (due to their well-known vulnerability as a section of the workforce).

Enforcement​

• Action on Enforcement: Introduce an amendment to make company officers liable for the payment of employment tribunal awards or settlement amounts where the employer (company) has not paid and the officer has found to have connived, consented or been neglectful in relation to the issue at hand. This amendment would use/adapt the existing wording in Section 105 and would be aimed at preventing workers from being denied remedy where directors refuse to comply with tribunal orders or they obfuscate access to company assets, such as through illegitimate phoenixing (whereby unscrupulous directors close companies and declare insolvency to avoid paying debts, only to reopen them under a different name).

• Safe Reporting*: Ensure the new Fair Work Agency does not share immigration data with the Home Office, so all workers feel they are safe to report labour abuses without fear of deportation. Other countries have taken steps to implement secure reporting measures of this kind including Brazil, the USA and Australia.

• Illegality Doctrine: Introduce an amendment that would repeal Section 34 of the Immigration Act 2016 and repeal the illegal working offence. Clarify in statute that the illegality doctrine does not apply in employment-related claims.

• Bridging Visas: Take steps to seek to introduce bridging visas to ensure that workers do not lose status when enforcing their rights.

Representation​

• Fair Representation: Ensure migrant worker representation is included on the Fair Work Agency Advisory Board with a process whereby groups of workers and/or their representatives can apply to join the Board. Migrant worker representation should also be built into the adult social care negotiating body. According to Skills for Care data, migrant workers make up 25% of the workforce in adult social care in England.

Inspection​

• Inspect to Protect: Create the power to inspect private homes where they are used as a place of work in social care and domestic service context. The labour inspectorate equivalent in the Republic of Ireland has he powers to inspect private homes where these are workplaces.