The recent action taken by the Gangmasters and Labour Abuse Authority (GLAA) and Labour Abuse Authority is a timely reminder to ensure robust due diligence in managing supply chain issues. This is particularly within the context of an increased reliance on international recruitment to address the ongoing recruitment and retention challenges in a number of sectors, and an employer’s duties under the Modern Slavery legislation.
The Care Quality Commission has recently noted a “notable rise” in referrals for modern slavery abuses across the health and care sectors in 2022; double the number of referrals compared to 2021. Providers will need to ensure that they are taking proactive steps to fully understand, identify, monitor and mitigate against the growing risks in this area.
We highlight below some of the key issues identified in the context of recent action taken. We also discuss the duties of organisations under the Modern Slavery Act 2015 to publish annually the steps they take to prevent modern slavery in their business and their supply chains.
In addition to the above, we also consider the impact on sponsor licence holders in the context of UK Immigration Law.
Case Study: Slavery and Trafficking Risk Orders issued for the exploitation of care home workers in North Wales
Between December 2021 and May 2022, the GLAA made five arrests following reports to the Modern Slavery and Exploitation Helpline (MS Helpline) surrounding the exploitation of over 50 students working in care homes in North Wales. The five defendants had links to care homes in Abergele, Colwyn Bay, Pwllheli and Llandudno and two of the defendants had also supplied the care homes with workers through a recruitment agency.
The initial call to the MS Helpline raised issues surrounding withheld wages and incorrect payment. Following further investigations by the GLAA and Labour Abuse Authority, nine potential victims were found sleeping on mattresses in unsanitary conditions and colleagues also reported a number of potential victims turning up to their shifts tired and hungry.
Whilst investigations appear to be ongoing, all five defendants have now been issued with indefinite Slavery and Trafficking Risk Orders (STROs), breach of which is a criminal offence carrying a maximum of five years imprisonment. The STROs are intended as a preventative measure to deter future modern slavery offences and specifically prevent each defendant from renting or subletting any property controlled by them, arranging travel to work for any worker and arranging travel within, into or out of the UK.
The recent high-profile arrests serve as a timely reminder of the increased risk of labour exploitation and modern slavery across all sectors, including the UK’s adult care sector, particularly in the case of migrant workers.
The UK adult care sector
As identified by the GLAA Senior Investigating Officer in the above case study, significant labour shortages and high staff turnover enhanced by an ageing population and the continuing implications of Brexit and the COVID-19 Pandemic, presents an increasing risk of care-worker exploitation in the UK adult care sector.
With an increased focus on international recruitment, necessary reliance on agency staff and other outsourcing options to meet ongoing recruitment challenges, providers will need to ensure that they have suitable and sufficient management and monitoring systems in place when working with intermediaries in the supply chain.
In addition to the need for increased diligence required in managing the supply chain, other risk areas include:
- Remuneration risks where wages are withheld or excessively reduced in exchange for food and accommodation.
- Recruitment risks where pre-recruitment checks can fall short of the relevant guidelines.
- Debt bondage, where migrant workers are working to pay off money borrowed to travel to the UK whose passports or permits are withheld until fees are paid.
Evaluating the risks of labour abuse and modern slavery in the supply chains and ensuring appropriate and robust due diligence processes both at the point of recruitment and throughout the course of the employment relationship, will be increasingly important in attracting and retaining staff, and ensuring that providers meet their Modern Slavery Act 2015 obligations.
Section 54 (Transparency in Supply Chains) of the Modern Slavery Act 2015 requires commercial organisations with an annual turnover of £36 million or more to publish an annual statement setting out the steps they take to prevent modern slavery in their business and their supply chains. The annual statement should include:
- Organisation structure and supply chains
- Policies in relation to slavery and human trafficking
- Due diligence processes
- Risk assessment and management
- Key performance indicators to measure effectiveness of steps being taken
- Training on modern slavery and trafficking
The annual statement should also show how the organisation is:
- Acting transparently and disclosing information about any modern slavery risks identified and what actions have been taken in response to them.
- Targeting actions where they can have the most impact by prioritising risks.
- Making year-on-year progress to address those risks and improve outcomes for workers in the business and supply chains.
Given the real risks in the sector and the requirements under the Modern Slavery Act, even if organisations fall below the above annual turnover rate, as a matter of good / best practice, we would recommend that all organisations need to make sure they have evaluated their risks and implemented measures to prevent slavery.
As mentioned above, there is an increased reliance on overseas talent within the health and care sector and there has been an uptake in visa applications and sponsor licence applications within the industry since the inception of the Health and Care Worker visa. This has resulted in increased scrutiny of sponsor licence applications and an increase in immigration audits.
Cases such as the above would inevitably result in action being taken by UK Visas & Immigration (UKVI) in the event the defendants held a sponsor licence and would have seen the licence(s) being revoked.
It is important to note that where providers are granted a sponsor licence there is an ongoing duty to ensure that migrant workers are not being exploited. Providers should be aware that UKVI can conduct an audit at any time and this can be an unannounced audit. Therefore, providers must ensure that they are fully conversant on their compliance obligations in the context of record keeping duties, reporting duties and monitoring of the migrant workforce as this will be assessed by UKVI. In addition, UKVI will want to see evidence that the migrant workforce is being paid at least the minimum salary that has been recorded on the Certificate of Sponsorship and where insufficient information is supplied, they can obtain this from HMRC as they have a close working relationship and share data.
Providers can prepare for an audit either by conducting a self-audit or by having an external immigration provider conduct a mock audit. In the event an UKVI audit is undertaken and compliance cannot be evidenced, possible ramifications can include the licence being suspended and for the more serious breaches, the licence being revoked.
Providers should also be aware that employing illegal workers is a criminal offence and should be found to be employing illegal workers you can face a civil penalty and in more serious cases a custodial sentence. It is vital that providers undertake their own Right to Work Checks where labour is being supplied by agencies so they do not get caught out.