Even though there were warnings that labour shortages would follow Brexit and the end of the free movement of workers, the UK Government did not put sufficient plans in place between 2016 and 2021, to prevent the crisis that many predicted. In recent months, it has been reported that as a result of Brexit and Covid-related disruptions there are shortages in several sectors, including meat-packing and HGV driving, which affect deliveries of food and fuel. It is also being reported that the worst is still to come.
The UK Government is attempting to address the problem in two different ways: first, by introducing temporary visas for migrant workers; second, by employing prisoners and other offenders to cover shortages. There is typically an inequality of bargaining power between employers and workers. Both proposed schemes are known to increase and perpetuate this inequality and workers’ resulting vulnerability to exploitation, and are associated with what I have described as state mediated structures of exploitation. For migrant workers or prisoners to work in fair conditions, radical change of the legal framework is needed.
From 2018, following the decision to leave the EU, the UK introduced a pilot seasonal worker visa, which it expanded in 2020 in order to cover labour shortages. A few days ago, the UK government announced that it would also bring in short term visas for HGV drivers and poultry workers.
Seasonal worker visas are part of temporary labour migration programmes, which often do not come with a route to permanent residence or citizenship. The schemes typically contain a number of restrictions, in this way creating a special vulnerability of the affected workers and fashioning a precarious workforce. There are, of course, several reasons why migrant workers are more vulnerable to exploitation than other workers: language barriers, lack of networks of support, lack of knowledge of national laws and practices. In addition to issues such as these, legal rules sometimes create further vulnerability to exploitation by tying workers to a specific employer, making it unlawful for them to change employer, by limiting the period of time during which they can stay in the country or by excluding them from rights that other workers have (such as social security rights, as Bogoeski has explained for this blog).
Seasonal visas of this kind are not new and are found in various low paid sectors, such as agricultural work, which can be dangerous, isolated in rural areas and challenging for several other reasons. The UK pilot to cover Brexit-related labour shortages initially involved 2,500 workers and was increased to 30,000 workers in 2021. Indeed, early empirical evidence suggests that the workers under the pilot experience severe labour exploitation. The organisation Focus on Labour Exploitation (FLEX) produced research that showed that workers’ recruitment, working conditions and living conditions exhibit elements of compulsion and duress, and that workers cannot leave their employer. The programme is a sponsored visa which is run by two intermediaries (namely licensed scheme operators as visa sponsors), creating twofold dependencies of the worker: not only on the employer alone, but also on these intermediaries. The latter are required by the scheme to make sure that workers are able to ‘move to another employer where possible’. In effect, workers depend on intermediaries to access employers, and can only move where possible, as controlled by the intermediaries. This vulnerability is compounded because some workers incur debts in order to travel to the UK, which has as an implication that they cannot simply leave the job and return to their home country, as they have debts to pay back.
The entrenched nature of vulnerability created by seasonal, temporary or restrictive visas is further illustrated by the 2012 Overseas Domestic Worker Visa. While domestic workers face special challenges for reasons such as the fact that they work in private households away from the public eye, the 2012 visa has specifically been associated with an increase of instances of severe labour exploitation, and linked to situations of ‘modern slavery’, as it effectively ties the workers to the employer with whom they arrived in the country.
In an empirical study that I conducted in 2014, it emerged that domestic workers are exploited and abused, but are too fearful to leave their employers because of their immigration status. For example, a worker told me: ‘[The employers] did not give me to eat. Only once a day, limited food. That is why I said I made a sacrifice. You need to work, you sacrifice everything’. The scheme was developed and maintained despite evidence that it was linked to ill-treatment of workers, and despite persistent calls for return to the pre-2012 scheme, whereby workers were free to change employers and had a right to apply to stay in the country after 5 years.
We do not have details on the new proposed visa schemes for HGV drivers and poultry workers as of yet, but their short-term nature (three months) makes them high risk for reasons including that workers may not have sufficient time to earn enough to cover the costs that they incurred for their travel (visa costs, travel costs, recruitment fees). The short-term nature of the visas will also restrict their ability to access legal advice and courts if needed, while the schemes may also come with other formal restrictions, including being tied to an employer or work sector. The head of the European Road Haulers Association, which represents over 200,000 trucking companies across Europe, was reported as saying that there was a driver shortage across Europe, and that the temporary relaxation of visa rules would not be sufficient to attract drivers to the UK: in the rest of Europe ‘[t]here’s a level playing field, and none of the Brexit-related hassle’.
Another route that the Government is considering in the effort to address labour shortages is through working prisoners and work requirements imposed on offenders as community sentences. How exactly this could be done is unclear for now, but Deputy Prime Minister Dominic Raab has said that it could be a good way to tackle HGV shortages. It has also been reported that the Association of Independent Meat Suppliers were in talks with the Ministry of Justice to explore how prisoners could be used to cover market needs. Raab said: ‘We’ve been getting prisoners and offenders to do volunteering and unpaid work. Why not if there are shortages encourage them to do paid work where there’s a benefit for the economy, benefit for society?’
A key message must be heard in response to Dominic Raab’s rhetorical question: For those in prison and other offenders to work, we need radical change of the legal framework, informed by an understanding of the purpose of prison labour and community sentences. Work can be important for prisoners and other offenders. It can help them learn new skills, do something useful during long and monotonous sentences, and make them earn an income to support their dependents. The Howard League for Penal Reform, the oldest penal reform charity in the UK, is in favour of real work in prison. Unpaid work for offenders (instead of prison), if suitably designed, could also be viewed as a better alternative to imprisonment.
However, at present there are serious problems with both prison labour and unpaid work requirements, with the two constituting a continuum of exploitation. Those working in prison are excluded from protective labour laws in many legal orders, including the UK. They are often excluded from the right to form trade unions and the right to strike, from being covered by collective agreements or a social security system, and from minimum wage laws. A Council of Europe survey showed that in twelve member states, prisoners are not included in a pension system (Stummer v Austria, para 60(c)), while in other countries the affiliation to a social security system depends on the type of work performed. The UK National Minimum Wage Act 1998 excludes working prisoners from its scope by providing that a ‘prisoner does not qualify for the minimum wage in respect of any work which he does in pursuance of prison rules’. Those doing unpaid work as a community sentence are also excluded from pay by definition.
In a report of the Howard League for Penal Reform, it was documented that the average pay for prison service work is £9.60 per week, even though some prisoners work up to 60 hours per week. Certain private companies pay only £2 per hour for prisoners’ labour. The Prisoners’ Service Order 4460 says that prisoners who work for employers outside prisons doing a job that is not in the voluntary or charitable sector have to be paid at least the minimum wage. The distinction between work performed in prison and work performed outside prison is not justified though. Private employers get prisoners to work for them in prison, and in this way avoid their obligations to pay the minimum wage, which these same employers would have to pay if prisoners were employed outside prison (see further here).
The UK Supreme Court recognised the particularities of prison labour in Cox v Ministry of Justice. It held that prisoners do not work on the basis of a contract, but because they have been sentenced to imprisonment, and are hence only paid nominally. These features ‘rendered the relationship if anything closer than one of employment: it was founded not on mutuality but on compulsion’. The element of compulsion makes working prisoners more vulnerable to exploitation than other workers, and should inform the legal protection of their rights. Frances Crook of the Howard League for Penal Reform argued in response to recent reports that if prisoners are employed by private companies, they should have workers’ rights, be paid equally to other workers, and pay tax and social security contributions. They ‘must not be exploited as cheap labour to take on the roles for which companies do not want to raise wages’.
Structures of exploitation and workers’ rights
It is very troubling that the UK Government is turning to schemes that are known to make people particularly vulnerable to exploitation through exclusions from labour and social security rights. In certain circumstances, aspects of these schemes may also be incompatible with the UK’s international obligations, for instance under the European Convention on Human Rights (ECHR), of which the UK is party, and International Labour Organisation (ILO) Conventions. The European Court of Human Rights (ECtHR) has examined the vulnerability of migrant workers and undocumented migrants in its case law. It has ruled that the exploitation of someone under a very restrictive visa scheme (Rantsev v Cyprus and Russia) and the exploitation of undocumented workers (Chowdury v Greece) violate the prohibition of slavery, servitude, forced and compulsory labour under Article 4 of the ECHR. The ILO has also scrutinized unpaid work requirements of offenders in the UK and found that these raise issues under the ILO Forced Labour Convention No 29 (1930).
The ECtHR examined prison labour in Stummer v Austria, which involved the affiliation of working prisoners with a pension system. The finding of the majority was disappointing, as it ruled that lack of affiliation with a pension scheme does not render the Applicant’s work forced labour or violate his right to property and the prohibition of discrimination. However, there were powerful dissenting opinions. Judge Tulkens highlighted:
[C]an it really still be maintained in 2011, in the light of current standards in the field of social security, that prison work without affiliation to the old-age pension system constitutes work that a person in detention may normally be required to do? I do not think so. This, in my view, is the fundamental point. Nowadays, work without adequate social cover can no longer be regarded as normal work. It follows that the exception provided for in Article 4 § 3 (a) of the Convention is not applicable in the present case. Even a prisoner cannot be forced to do work that is abnormal.
The dissenting opinions in Stummer should form the basis for the development of the law in the future.
The effects of Brexit are pervasive, and it is still early days to account for them all. One effect, crystallizing in the policy discussions of the past days and weeks, is a connection to an increase in structures of workers’ exploitation. This does not come as a surprise. Organisations specialising in the rights of migrant workers and those in prison have explained that many safeguards need to be put in place, in order to make the legal frameworks compliant with workers’ rights. FLEX, for instance, explained that any visas should contain an effective right to change employer and that they should contain a route to settlement, along with other safeguards. Crook of the Howard League for Penal Reform also argued that for prison work to be fair, major changes are needed that should reflect commitment to workers’ rights. Without these safeguards, structures of exploitation will increase in the UK and will become all the more widespread, standard and routine.