Tackling Exploitation in the Labour Market Response to the Department of Business Innovation & Skills and Home Office consultation December 2015

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1 Tackling Exploitation in the Labour Market Response to the Department of Business Innovation & Skills and Home Office consultation December 2015

2 Introduction 1. The Law Society of England and Wales ("the Society") is the professional body for the solicitors' profession in England and Wales, representing over 160,000 registered legal practitioners. The Society represents the profession to parliament, government and regulatory bodies and has a public interest in the reform of the law. 2. This response has been prepared by the Employment Law Committee of the Society. 3. The Law Society believes that an effective statutory framework for tackling all labour market exploitation will comprise:- effective, accessible and available remedies for individual victims; clear, understandable regulatory penalties, which are both just and intuitive; a fully powered and resourced enforcement agency or agencies; and a victim-centred approach that minimises any deterrents to seeking justice and empowers them to act. The case for more effective enforcement 1. Do you agree that more needs to be done to tackle organised labour market exploitation? 4. Yes. We support the sentiments expressed in the ministerial foreword. Strong and effective action is needed to tackle worker exploitation and those who wilfully disregard employment laws. 5. It is positive that the government are concentrating on this issue, which is overdue for consideration. The consultation document makes some valuable proposals, which should help to improve how enforcement agencies deal with labour exploitation. The Law Society supports the majority of what is proposed but we more should be done to empower the victims of exploitation. Simply seeking to solve labour market exploitation solely through expanding the enforcement powers of government agencies will only be partially effective in tackling the spectrum of abuses identified. Further work in this area should focus on how to empower the victims of labour market exploitation, so they feel confident that it is worthwhile and possible to pursue justice. This could be done through two additional actions: investigating and removing barriers to justice for victims of exploitation; reviewing the concept of illegal working and its consequences on the contract of employment. 6. The Law Society recommends that the government, or the newly created Director of Labour Market Enforcement, should conduct an investigation of barriers to justice for victims of exploitation in the labour market. It is now harder for individual victims of labour market exploitation to pursue their case through the employment tribunal (ET). ET fees have harmed access to justice 1 and since July 2013 many people have not been able to enforce their employment rights. The most recent Ministry of Justice statistics show that there 1 file:///c:/users/ndenys/downloads/letter-to-moj-employment-tribunal-fee-review-september-2015.pdf 1

3 has been a decrease in claims to the tribunal by over 67%. The fee, which can be up to 1,200, is prohibitively high for most people, and the remission system complicated to use. 7. There is also a problem with the enforcement of ET awards, many of which go unpaid. A study by the department of Business Innovation and Skills (2013) found that only 49% of ET awards were paid in full, with a further 16% paid in part, and 35% of those awarded compensation receiving no money at all These barriers to access to justice make it almost impossible for those who have been exploited to enforce their rights, and to punish the exploiter. 9. The Law Society also recommends that the government, or the newly created Director of Labour Market Enforcement, reviews the concept of illegal working and its consequences on the contract of employment. The courts have already suggested how the law should develop. The Supreme Court judgement in Hounga -v- Allan & Anor [2014] UKSC47 3 allowed a claim by an illegal immigrant to proceed, in part on the public policy principle to protect victims of trafficking. The Supreme Court was able to do this because it relied on noncontractual rights. If the exploitation had been classified simply as leading to an unfair dismissal rather than discrimination the claim may not have been able to proceed, even though it had been recognised that exploitation had happened. Employment law should be considered more broadly to make sure that victims of exploitation in the labour market are not powerless due to the illegality defence 4. A new Director of Labour Market Enforcement and more flexible enforcement 2. Do you agree with the following statement?"establishing a new Director for Labour Market Enforcement to set the strategic direction of the enforcement bodies will be effective in tackling worker exploitation." 10. Yes. We support the creation of a senior role that will set a single strategic plan to identify and tackle worker exploitation across all labour sectors. In principle, the Director should be well placed to direct resources to where they are most needed, and to promote regulatory and legislative changes that will empower those who have been exploited. 11. However, we are uncertain how effective the Director position will be. At this stage, it is difficult to tell whether any shortfalls in the achievements of the current regulatory bodies are simply due to the fact that there are different regulatory bodies involved or, for example, whether this is an issue of resourcing. 3. What other factors should we consider in developing the new Director role? 12. The Law Society recommends that the new role should have wider terms of reference and a broader range of powers

4 13. The Director should: review whether the UK should implement EU Directive 2009/52/EC 5 or create a domestic equivalent. Implementing such a Directive would be the most effective way to increase the power to tackle exploitative employers The Directive, or a domestic equivalent, would allow the Director and any new agency to concentrate on the most serious abuses, because less serious (but still deliberate) abuses could be dealt with by individual victims; have powers to review the interface between immigration law and employment law. Some of the problems illustrated in the consultation 6, especially around prosecuting slavery cases, arise out of the fact that the two disciplines do not co-ordinate sufficiently well. Many of the victims referred to in the paper are victims because they fall through the cracks between employment and immigration practices. Migrant workers, who are particularly targeted by exploitative employers, are often not able to use employment law because of their illegal immigrant status, which means they do not have the right to work, thus any employment contract they enter into is unlawful. A consequence of this is that there is a lot of confusion over what rights can or cannot be enforced. This means the individual cannot easily get redress from an exploitative employer, and unscrupulous employers can take advantage of this. The Director could try to clarify what rights can and should be enforced, and how employment law and immigration law work should in parallel during labour market exploitation cases. New offence of aggravated labour law breach 4. Do you agree that a new offence of aggravated labour law breach is needed to tackle the exploitation of workers? 14. No. The offence of aggravated labour law breach already exists introduced through section 16 of the Enterprise and Regulatory Reform Act 2013, which created a new Section 12A of the Employment Tribunals Act 1996 though it is so seldom used that the powers are effectively redundant. As at 20 October 2015, only eight penalties have been awarded for aggravated labour law breaches, and of those only two have been paid. 15. The Section 12A provisions created what is in essence a civil penalty, not a criminal offence. Creating a criminal offence might discourage some of this illegality, though the Law Society favours the government conducting a fully comprehensive review of how to best tackle exploitation in the labour market, as recommended in our answers to questions one and two The nature of exploitation - page

5 5. Which of the options described would be effective in tackling labour market exploitation? A) Create an offence involving a motivation intention to deprive a worker of their rights or to exploit a worker in connection with the commission of the offence. B) Create a new type of improvement notice. C) Both A and B. D) None of the above 16. The Law Society supports option C. 17. The Law Society agrees that introducing a criminal offence of an aggravated labour law breach would help to better tackle labour market exploitation. This would allow the criminal acts of an exploitive employer to be pursued regardless of whether or not the individual victim is able to bring a claim. The possibility of a custodial penalty would send a strong message to offending employers that the government considers labour market exploitation to be a serious matter. 18. If a new criminal offence were to be created, the Law Society recommends the repeal of Section 12A of the Employment Rights Act This is because the existing powers in the Employment Rights Act with regard to aggravating factors in employment cases are little used in practice. It is not surprising that the Section 12A powers are not often used, as they are dependent upon a claim being brought by an individual before the ET, even thought the individual receives no benefit from an award. 19. We are concerned, however, about the concept of motivation playing a part in the structure of any such offence. It is unclear how it could be proved that someone s motivation for the offence was to deprive a person s rights as worker. Those charged with such an offence are likely to claim that they did not know that they had infringed a person s rights as a worker, or were motivated by financial or pastoral considerations. This difficulty to show wrong doing would be compounded by the fact that the standard of proof required for a conviction is higher for criminal matters 7 compared to civil matters The Law Society agrees that it would be a good development to give the new agency or agencies the powers to issue both improvement notices and on the spot fines for legislative breaches. The Law Society also recommends that the right of appeal for such notices should be heard in the ET. Judges in the ETs are well placed to understand what might be an aggravating feature from the point of view of good labour market practices. They are also used to hearing appeals against improvement or prohibition notices under the health and safety legislation and unlawful act notices under equality law. 6. What are the benefits of creating an offence involving intention to deprive a worker of their rights? 7. What are the benefits of creating an offence involving motivation to exploit a worker in connection with such an offence? 7 Guilt beyond a reasonable doubt. 8 On the balance of probabilities, the defendant was more likely liable than not liable. 4

6 21. The proposals in the consultation would create a new type of inchoate 9 offence. While it is desirable to deal with the nasty behaviours linked with labour market exploitation, such types of offences are only rarely successfully prosecuted, as it is difficult to prove intention and motivation. The Law Society believes that, of the two sanctions proposed, the pre-emptive improvement notice approach will have most success in tackling exploitation. 22. For any offence to be effective it has to enforceable. As explained in the answer to question one, the significant problem of enforcing ET awards allows exploitative employers to escape punishment. The government, or the new Director, should consider how to encourage individuals who have suffered from labour market exploitation to make a claim. This will facilitate the creation of a new offence and enforcement process that can be used to prevent and punish worker exploitation. Rather than relying on agencies discovering exploitation, individuals should feel able to report bad practices. This will help agencies to gather more evidence on where labour exploitation happens. 8. What are the benefits of creating a new type of improvement notice to tackle exploitation of workers? 23. An improvement notice process could allow the ET to deal with questions concerning acceptable norms of employment practice. An enforcement process which is essential civil in nature, but with the added teeth of a criminal sanction if the notice is not followed, gives enforcement bodies the best possible tools to improve behaviour. Information sharing 9. Do you agree on the need for powers to share data and intelligence across the enforcement bodies and with other organisations? 24. The Law Society agrees that the Director and the main enforcement bodies in the labour market exploitation area should have wide-ranging powers to share data and intelligence. This will allow the Director to understand where workers are most risk of abuse, and help enforcement bodies to best direct their efforts. The Law Society agrees that the framework should be on a proper statutory footing, and give full regard to Data Protection and other relevant legislation. Reforming the GLA 10. Do you agree with the proposal to expand the role or the Authority of should we retain the current model? 25. Yes, but it is important that the new Authority has the necessary powers, resources and expertise to fulfil the expanded role. 26. It makes sense to have a single Authority that has the responsibility to prevent worker exploitation wherever it occurs in the labour market, and the Gangmasters Licensing Authority (GLA) does have experience in this area, though within 9 An offence, such as incitement or conspiracy, anticipating or preparatory to a further criminal act. 5

7 limited fields. Having a single Authority in this area will make it more straight forward for the new Director of Labour Market Enforcement to coordinate efforts to prevent labour exploitation. 27. The Law Society is concerned that the consultation does not provide any indication of the scale of the problem nor does it explain how the Authority will be resourced, for example there aren't any details on the extra resources that will be needed to allow the new Authority to tackle worker exploitation across the economy. The objectives and remit of the new Authority 11. Do you agree that the mission of the new Authority should be to prevent, detect and investigate worker exploitation, in support of the Director's annual plan? 28. Yes. The new remit is very wide and flexible. As a high-level ambition it clearly states the new scope of the new Authority, and links it to the plan created by the Director. What is unclear is how the relationship between the Director and the new Authority will work including what input the new Authority will have into the Director's plan, how much the Director needs to take into account the resources available to the new Authority, and whether the new Authority has the ability to prioritise the level of support it gives to the different aspects of the plan. 12. Should the new Authority work with business to provide training, and develop codes of conduct and voluntary accreditation schemes? 29. Yes. The Society agrees that the new Authority should provide training and develop codes of conducts and guidance in this area. The new Authority could also create explanatory videos and offer a free helpline to give advice to employers and employees. 30. However, we do not see the value in creating a voluntary accreditation scheme. All organisations should do what is necessary to abide by the law and ensure that they do not exploit workers. Creating and managing an accreditation scheme is a significant amount of work and should be an operational decision for the new Authority. For any accreditation scheme to maintain stakeholder confidence it needs to be administered properly, and those who sign up to it need to be assessed to ensure that they are meeting the necessary standards. The new Authority needs to consider whether creating and operating a voluntary accreditation scheme would be a good use of its resources. 13. Should the new Authority be able to charge for such services? 31. This is an operational decision for the new Authority. Employers and employees and the public generally should be able to access free information across a variety of platforms to ensure everyone understands the law. Any charge for extra services, such as training events, should be priced at a level that does not exclude smaller employers. Acas is an example of an organisation that provides a good balance between free resources and charged for content. 6

8 14. What other tasks might the new Authority perform? 32. The new Authority should provide information on an easy to navigate website, free leaflets to download, and access to information videos. It should also publish regular reports that analyses where and how worker exploitation manifests itself in the UK economy, and a report on enforcement action and outcomes. Powers of the new Authority 15. Do you agree that the new Authority should be able to investigate labour market breaches and offences that fall under the remit of the new Director, including the new aggravated breach offence and Modern Slavery Act offences, as well as breaches of National Minimum Wage/National Living Wage and employment regulations, where they are connected with labour exploitation? 33. Yes. This will enable the new Authority to investigate serious exploitation where it is discovered, without having to wait for the police to become involved. Having such powers would allow the new Authority to take immediate action to secure evidence, arrest suspects and rescue victims. It makes sense to give the new Authority similar investigative powers as exercised by HMRC and Immigration Enforcement. 34. If the new Authority receives these executive powers it would be crucial for effective oversight processes to exist, and the new Authority would have to ensure that all of their staff who perform "police-style" investigations are appropriately trained. The Law Society agrees that the oversight recommendations contained in paragraph 124 of the consultation should be implemented. 16. Do you agree that the new Authority should have the power to investigate these offences across all sectors of the labour market? 35. Yes, though the Law Society is concerned that the consultation does not explain how the Authority will be resourced. 17. Are the investigative powers proposed appropriate given the new Authority's functions? 36. The investigative powers proposed within the consultation are substantial. 18. Are there any additional powers the new Authority should have? Please describe and give your reasons. 37. The Law Society does not consider that the new Authority needs any additional powers. 19. Do you agree that the new Authority should be able to use Proceeds of Crime Act powers to recover criminal assets? 38. Yes. The Authority should be able to use the provisions for cash forfeiture and confiscation to remove assets from those who have benefited from labour market exploitation. It is right that, as with many other criminal endeavours, those who have been found to have exploited are denied the use of assets gained through 7

9 exploitation. Examples of such seizures will hopefully deter some labour market exploitation from happening in the future. 20. What are the benefits of the new Authority having a formal power to ask for assistance from relevant organisations? 39. It is important that the new Authority works with other law enforcement agencies. It is likely that in the most serious exploitation cases that at some point in the investigation the new Authority will conclude that the police or the National Crime Agency will be best placed to take the lead. 40. The Law Society agrees that the new Authority should not have the power to compel other law enforcement bodies to provide it with immediate support. These other bodies will have to take into account their own resources and priorities before deciding how to join an investigation. 21. Which organisations should this power apply to? 41. The main organisations which the power to ask for assistance should apply to are: the Police the National Crime Agency, and Immigration Enforcement. HMRC, as those who exploit labour are likely to be paying under the national minimum wage and avoiding tax. 22. Should other enforcement organisations be given the 'right to ask' the new Authority to offer operational support? 42. The organisations we have mentioned above should also have the right to ask the new Authority for support. Licensing 23. Do you agree that the current licensing criteria should be reformed? 43. The Law Society does not have an opinion on this matter. 24. What reforms do you think would improve the current licensing regime? 44. The Law Society does not have an opinion on this matter. 25. Do you agree that we should introduce a more flexible approach to licensing, based on a risk assessment, judged on a sector basis and agreed by Ministers and parliament? 45. The consultation does not contain enough information to judge how the new approach to licensing will operate or how it will be an improvement on the current system. The Law Society suggests that the government issues a separate consultation on how this more flexible approach to licensing, based on risk assessment, will be implemented, operate and enforced. 8

10 26. Are there any sectors that you would remove from the current licensing regime? 46. The Law Society does not have an opinion on this question. Governance and oversight of the new Authority 27. Will the proposed governance arrangements enable the new Authority to achieve its mission under appropriate oversight? 47. The level and quality of resources made available to the new Authority will be a key factor in determining whether or not it achieves its mission, including enforcement action. As noted above, the Law Society is concerned that the consultation does not explain how the Authority will be resourced. 48. The proposed governance arrangements, to make the new Authority a Non- Departmental Public Body, make sense. This will give the new Authority operational independence from government, though its board and chair will ultimately be accountable to the Home Secretary. 49. However, as noted above, it is unclear how the relationship between the Director of Labour Market Enforcement and the new Authority will work. The Director has to produce a yearly plan, which the new Authority then supports. The consultation does not mention how involved the new Authority will be in the creation of the plan, how the new Authority will prioritise the work contained in the plan, nor what the Director can do if they believe that the new Authority is not properly supporting the plan. This needs clarification to eliminate the risk of misalignment between the Director's plan and the Authority's delivery against it. 9

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