A New Crime on Slavery, Servitude and Forced or Compulsory Labour
Hotels and other companies operating in the hospitality sector have a responsibility to safeguard staff and agency workers engaged within their business operations and to treat all workers with dignity and respect.
Companies should also be aware of a new criminal offence of holding someone in slavery or servitude, or requiring them to perform forced or compulsory labour. Even if companies are not engaging in these practices themselves, they can be convicted of aiding and abetting, encouraging or assisting, or conspiring to commit the crime if they are subcontracting workers who they know or should have known are being held in servitude or required to perform forced or compulsory labour.
This criminal offence is part of the UK Government’s response to its obligations under the European Convention on Human Rights to protect people within its jurisdiction from slavery, servitude and forced or compulsory labour.
Turning a Blind Eye is not an Option
Companies can be found to have met the standard of “known or should have known” that the offence is taking place if they wilfully disregard the indications that the offence is taking place. Turning a blind eye to working conditions of staff and agency workers and the operating practices of agencies is not an option.
Companies should undertake effective due diligence to ensure that their employment and contracting arrangements meet legal requirements – and in doing so, reduce their risk of complicity in a crime and ensure they are providing dignified working conditions for staff and agency workers. See the list of indications below and the SEE Formula for further suggestions on carrying out such due diligence.
Pay Particular Attention to Migrant Workers and Other Potentially Vulnerable Workers
Of particular note: the UK Ministry of Justice noted that the “increased mobility of populations may mean that labour exploitation is continuing to increase. The section 71 offence should provide a tool to help recognise and tackle such exploitation.” Where workers are considered “vulnerable”, this will be considered an aggravating factor in determining the sentence for the crime. Migrant workers, who can represent a large portion of employees and staff and agency workers in the hospitality business, may be considered vulnerable victims within the meaning of the offence because they may be vulnerable to coercion or deception about working conditions. Companies should take particular care to scrutinise working conditions and arrangements for migrant workers and other potentially vulnerable workers.
Be Attentive to Indications of Servitude or Forced or Compulsory Labour
Below are key extracts from the Ministry of Justice Circular 2010/07 which outlines the provisions of the law (Coroners and Justice Act 2009 – Section 71 (England, Wales and Northern Ireland – Section 71 and Criminal Justice and Licensing Act 2010 (Scotland) – Section 47) and should be consulted for further detail.
There are a number of factors which may, depending on the circumstances, indicate that an individual is being held in servitude or subjected to forced or compulsory labour. The essential elements are those of coercion or deception, which may be demonstrated in a number of ways. The kind of behaviour that would normally, of itself, be evidence of coercion includes (but is not limited to):-
- Violence or threats of violence by the employer or the employer’s representative;
- Threats against the worker’s family;
- Threats to expose the worker to the authorities (e.g. because of the worker’s immigration status or offences they may have committed in the past);
- The person’s documents, such as a passport or other identification, being withheld by the employer;
- Restriction of movement;
- Debt bondage;
- Withholding of wages.
Further Indications of Forced Labour
Other factors that may be indicators of forced labour include (but are not limited to):
- The worker being given false information about the law and their employment rights;
- Excessive working hours being imposed by the employer;
- Hazardous working conditions being imposed by the employer;
- Not being provided with safety equipment and clothing, and/or being charged for the provision of such equipment that is essential to perform the work;
- Unwarranted and perhaps unexplained deductions from wages;
- The employer intentionally not paying the full tax or national insurance contributions for the worker;
- Poor accommodation provided by the employer (e.g. accommodation that is overcrowded, not licensed as a “House of Multiple Occupation” by Local Authorities, or does not have any necessary gas and electricity safety certificates);
- Intentionally poor or misleading information having been given about the nature of the employment (e.g. about the location or nature of the work);
- The person being isolated from contact with others;
- Money having been exchanged with other employers/traffickers etc for the person’s services in an arrangement which has not been agreed with the person concerned or which is not reflected in his remuneration.