Since April 2010 there has been a new offence introduced which may have an effect on the employment sector in England and Wales.
It is now a criminal offence to hold a person in slavery or servitude or require them to perform forced or compulsory labour.
What is the potential prison sentence for an individual found guilty of this offence?
An individual found guilty of this offence will be liable to a maximum prison sentence of 14 years under the Coroners and Justice Act 2009.
What does this offence mean for the employment sector?
Following the creation of this offence individuals who are required to work long hours, do not receive overtime and are subject to particular jobs which they do not enjoy may feel that they will benefit directly from this legislation. However, this is not necessarily the case.
What is meant by forced labour?
The concept of forced labour is not one that is found in the everyday employment contract that many individuals in the United Kingdom are subject to. Often an employee may feel that many of their day-to-day tasks in their own mind may amount to forced labour but in reality this is rarely the case.
The crux of the matter is that the vast majority of employment in the United Kingdom employment sector involves a choice by that employee to work for a particular employer. Where this choice exists that employment clearly will not fall within the definition of forced labour.
What must be present in order for labour to be deemed forced?
In order for labour to be deemed forced there must be some level of coercion or deception which goes beyond the ordinary.
Would this include poor pay and long hours?
Poor pay and long hours no matter how grueling on the part of the employees would not fall within the definition of forced labour. There still essentially exists a choice. Although an individual may have little option to choose to work in a particular job for poor pay and long hours there is still no coercion or deception on the part of the person employing them.
What is the reason for this?
Many industries in which responsible employers operate depend very much on low-cost seasonable labour. These industries include certain areas of agriculture, construction and hospitality. It would be disproportionate to hold that responsible employers have been guilty of forced labour simply by adopting the required practices of their industry.
Do these workers already have existing statutory protection?
Workers in these industries, as are all workers in England and Wales, are protected through the Working Time Regulations 1999 and through national minimum wage legislation. Therefore it is deemed that further protection under this new legislation is not required.
How will a worker be able to show that an individual employer is in breach of this new legislation?
If an individual makes an allegation against an employer in relation to forced labour under the new anti-slavery legislation this allegation will need to be supported by some form of evidence.
What must this evidence be?
The evidence must be something out of the ordinary. Examples of this evidence may be that the employer has not been paying an employee the wage that was agreed upon, that the living conditions that have been provided onsite are extremely poor, or that certain documents such as a passport are being withheld by the employer.
How can coercion or deception be shown?
As stated above, in order for an employer to fall within the offence of compulsory labour there must be an element of coercion or deception present between the employer and the worker. Accordingly for this to be present the circumstances of the case will need to be such that the employer knew the arrangement was oppressive and not truly voluntary, or had been willfully blind to the fact.
Will this new legislation have any impact on the UK employment sector as it currently stands?
For all employers that currently comply with all their obligations under the employment laws of England and Wales there will be no impact on their day-to-day dealings with staff brought in by the new legislation.
What then is the purpose of the legislation?
The purpose of the legislation is to protect migrant workers who have little English and who are not aware of the rights which are provided to them under the employment laws of England and Wales. This means that they will not be aware of how or where to report any of the things which are happening to them.
The main crux of the legislation is therefore to create criminal liability for employers which are exploiting the most vulnerable of workers in England and Wales.
There are no new obligations or restrictions imposed on employers who adhere to employment law.