Byron Hamburgers: When employers fail to do right by migrant employees

Submitted by sglenister on Tue, 16/08/2016 - 15:22

16 August 2016

By Don Flynn, Director of the Migrants' Rights Network (MRN)

What else could Byron’s have done? The social media world was awash with attempted defences of the hamburger chain after it collaborated in the arrest of 35 of its migrant workers earlier in July. Our answer is they didn’t have to go along with the shabby act of entrapment of its staff, and they could have done so much more to push back against punitive, anti-worker rules.

The operation directed against migrant employees of the fast food chain, Byron Hamburgers by Home Office Border enforcement officials on the evening of 4th July has sparked a lively discussion about the extent to which employers should be held to any sort of standard when it comes to a duty of care towards their workers.

Some see employers as hapless victims of a relentless drive by government to impose an impossible burden of immigration regulation on them which they are often in a poor position to implement. The twitter world has recorded a frisson of sympathy for bosses in this situation, regretting the fact that the management of Byron Hamburgers has come in from harsh criticism from migrant rights campaigners for the level of cooperation they provide to immigration enforcement officials.

MRN’s stance on this issue goes way back to November 2008 when we published Papers Please, which reported on the impact of the regime of civil penalties which the then Labour government had beefed up and imposed on business employing migrants.

Driving mass migration

At that time, as now, the authorities were operating without any understanding of the economic and social forces which had instigated a new period of mass migration in the UK, as was occurring across the rest of the world. Blinking their eyes in bewilderment, the authorities watched as the evidence mounted up that the economy which had come into existence across the previous decades was operating as a vast magnet drawing workers across borders and into labour markets which were geared up to extracting the maximum value from the labour of people with the least rights.

The best that government could come up with was a constant rejigging of traditional approaches to immigration management, aiming to increase the scope for identity checks and the discretionary powers available to the authorities to declare different group of migrants as ‘illegal’. This approach evolved into a system which required just about everyone who ever came into contact with a migrant – employers, social security administrators, local government officials, banking staff and, in recent times, health service workers and private sector landlords – to play their role in enforcing rules which were vast in complexity and volume.

Some commentators on the current situation – notably a piece written about the Byron Hamburgers incident by the legal academic Thom Brooks - say that employers in particular have been overwhelmed by the tasks of immigration checking and that the job should be returned to Home Office officials who are properly resourced to do the job. The implication, picked up by many other contributors to the social media sphere, is that Bryon’s management should be judged blameless for the results of the Home Office raid on their premises, which resulted in the arrest of 35 of their workers.

Not off the hook

We disagree both on the terms of the general proposition that employers are just another set of victims of the system, as well as the concern to let Byron’s off the hook on this specific occasion.

On the general point our view is that employers have benefitted enormously from the deregulation of labour markets over the years which have been one of the main driving forces of large-scale migration. Across whole sectors of the economy – from food production and processing, hotels and restaurants, construction and health and care services, retailing and more – there is scarcely a company in the UK which has not factored in the ready availability of hundreds of thousands of workers with minimal rights to job security into its business plans. The rise of the ‘gig’ economy is the big story of recent years, and its birth has been nursed along by successive governments which have demanded the maximum of flexibility from its workforce.

As the expert commentator on the food production industry, Felicity Lawrence explained in her 2004 book Not on the Label, rightless and put-upon migrants inevitably appear as the mainstay of sectors which aim to manage every aspect of their supply chains to load risk down onto components and people least able to push back. It is a system that not only exploits those who are already rightless, but also strips whatever modicum of capacity for resistance from those who once thought that they had some entitlement under the law.

Tens of thousands of businesses across the UK are, like Byron Hamburgers, massively dependent on a migrant labour force as the source of their profits. But whilst they form part of a powerful pressure group on government policy on matters concerning other areas of regulation business has remained silent when it comes to issues that concern the security and welfare of the workers who are responsible for making their profits. For the best part of ten years since civil penalties were ramped up there has been no significant sign of any protest from employers that the obligation to check immigration status is not only a burden that, for small businesses in particular, is impossible to meet, but also highly invidious in that it requires them to take the harshest of actions against hardworking members of their staff.

Byron’s offence

We have the Byron Hamburger incident freshly before us. The central charge here is that the management entered into a scheme designed to entrap members of its workforce by lying to them about the purpose of a special meeting held on 4 July which in reality proved to be for the purpose of allowing Home Office enforcement staff to round up staff whose papers were alleged not to be in order.

It is not true to say that Byron’s management were obliged by law to provide this level of cooperation. By the accounts they had provided to the media they say that they had discharged all their obligations under immigration law to check documents and keep them on file. Furnished with this defence they were quite entitled to tell immigration officers that they had done what was required of them and any further action would have to be taken on the sole initiative of the Home Office itself.

Chaotic

We can understand why Home Office Immigration and Enforcement would be dismayed by this response. As we explained in a recent blog on this very subject, much of the activity of this department in this area have been found to be at best chaotic, and at worst unlawful. This was certainly a viewpoint expressed by the Chief Inspector for Borders and Immigration when he delivered a report to government on the conduct of raids of workplaces back in 2014.

Back in 2010 we were able to assist the Trades Union Congress in the drafting of a report on workplace checks on immigration status which was published as a guide for people involved in negotiations with employers as to best practice in dealing with this issue.

It makes the case for business who have migrants in their staff teams to acknowledge a duty of care to people who are often in a position of being traduced by the impossible demands of immigration regulation and the ever-renewed ambitions of politicians to return to ‘toughness’ as the hallmark of their work. It might just be time to take this little pamphlet down from whatever shelves it has been deposited on and see whenever it is still a useful approach to determining good practice from the downright awful, as we have seen in the case of Byron Hamburgers.

Originally published by the Migrants' Rights Network

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