Migration after Brexit: the challenge to labour standards

By Roger Jeary, IER blogger Roger Jeary, a delegate at the Institute of Employment Rights’ Migration After Brexit: the Challenge to Labour Standards event, provides a detailed report on the debate, including free downloads of the papers and presentations given by the nine experts on our panel.

Commentary icon17 Mar 2017|Comment

By Roger Jeary, IER blogger

Roger Jeary, a delegate at the Institute of Employment Rights’ Migration After Brexit: the Challenge to Labour Standards event, provides a detailed report on the debate, including free downloads of the papers and presentations given by the nine experts on our panel.

Chair of the Conference, Adrian Weir from Unite, welcomed delegates to this topical conference. Adrian reminded Conference that the theme today is one which has been worked on by the Institute over many years and he welcomed the diverse experiences of the range of speakers addressing the conference.

Bernard Ryan, Professor of Migration Law at University of Leicester

Bernard began by suggesting that the current situation brings into question the implications for a progressive migration policy, post-Brexit. He outlined the scale of migrant employment in Britain, which showed a 10% addition of foreign-born workers in the labour force. A large majority of the EU increase had come from the accession states. He did not accept that migration increased simply as a result of the flexible labour market but was influenced by many factors and that this allowed employers to take advantage of migrant workers. However he did not feel that this characterised labour migration as a whole.

He contrasted the political reaction to migration to the evidence of the real labour market impacts. Professor Ryan outlined different perspectives of migration and regulation of the labour market. He coined the phrase “contemporary nationalism” to describe current government approach to migration and the labour market using criminal law to address immigration issues, which does nothing to protect migrant workers. He posed the question whether it was possible to move from a nationalism to an egalitarian approach to migration and the labour market.

In the context of Brexit, he said the role for labour law in the design of labour migration policy had to be designed to minimise the possibilities of poor treatment. He expressed particular concern with employer checks and the impact on migrants right to work.

Download Bernard Ryan’s presentation

Don Flynn, Migrant Rights Network

Don addressed Conference on the significance of the community dimension of trade union work needed to support migrant workers. He pointed to the welcome establishment of trade union community branches, which is not entirely made up of members in work, and how they can assist resistance to exploitation. He spoke of the newly ‘independent’ trade unions which have a strategy based on community identity particularly relevant to migrants. He contrasted the “Fordist” model of exploitation which was based on a “deal” which ensured the state prepared people for the workplace and employers benefitted from a workforce disciplined to accept exploitation from the employers. Resistance was through collective bargaining offered by trade unions.

The “Post Fordist” exploitation was the result of a restructuring of capital disconnecting it from work processes and resulting in core businesses which outsource everything to sub-contractors. This, he argued, allowed employers to pit groups of workers against each other through flexible working, zero-hour contracts and ‘gig’ workers and to transpose the risk ultimately onto the backs of the most vulnerable workers, which were often migrant workers. He pointed to the increased role of employment agencies in organising these arrangements. The worker is disempowered through this process and migrants are typically represented in this group of workers. Migrants are vulnerable due to immigration controls, limited social networks, language issues and discrimination. The consequences of Brexit is to extend this insecurity to the three million EU workers in the UK. However, Don highlighted the strength of migrants in surviving adverse situations and building intra-community support networks.

He argued that the community is the base for organising resistance to the exploitation experienced by migrants. He concluded by emphasising the importance of community-based union activity which can support migrant community networks. He said the unions have much to overcome in their traditional areas of work to extend their activities to those issues which unions have not normally addressed, such as housing and immigration.

In response to questions and comments Prof Ryan did not accept that immigration was driven solely by employer recruitment and that therefore migration policy cannot be only determined through labour market protectionist policy. He also emphasised that the benefits of labour law standards benefit all workers not just migrant workers. Don Flynn added that capitalism has constantly recreated a working class over the centuries. He felt that post-1970’s saw a real shift from Fordism to the current structures of financialisation which undermined all but a few of the UK workforce.

Susan Cueva, National Development Officer for Unison

Susan explained the challenges for organising migrants following Brexit. She believes that it is important for unions to organise migrant workers given the numbers involved, however there is a downward trend in the number of migrants employed in public services. She told conference that in the NHS the downward trend in nurses from outside the UK was mainly from non-EEA countries.

Unison has a quarter of its members from foreign national background and Susan outlined their strategy of campaigning and organising around migrant rights, which has been issues based in workplaces. Immigration policy, she said, is a union issue because of the costs to migrants of migrating to the UK, issues relating to visas and the social cost of migration. In outlining Unison campaigns, Susan highlighted the campaigns to remove the £35k salary requirement and the right to stay for the three million Europeans. She spoke about the establishment of the Unison Migrants Network and their work with other community organisations. As a result of these campaigns, more members and activists had been recruited and retained.

The impact of Brexit has brought about the EU Migrants Networks in Unison campaigning for the right to stay. This has involved a lobby of parliament by over 2,000 people contacting their MPs and establishing local community groups to pursue the campaign. This development work has increased the numbers of EU members in Unison and Susan said they were now discussing how to structure their networks into the future to maximise the effectiveness of their campaigning work.

Download Susan Cueva’s presentation

Diana Holland, Assistant General Secretary for Unite

Diana addressed the potential challenges to labour standards arising from the Brexit decision. She started by looking at the labour market as a whole and the divide that exists in the workplace brought about by the styles of contracts now being used. This, she said, was not new, referring back to the Grunwick dispute 40 years ago where similar issues were fought against. Alongside this were the basic discriminatory attitudes towards those that worked for low pay, i.e. women and migrant workers.

Diana referred to a Unite survey which highlighted the desire for migrant domestic workers to have a union card and a louder voice. She said that Unite has brought together workers from across sectors to find the common issues across industry and commerce. She listed the achievements of protecting labour standards including the establishment of the Gangmasters Licensing Authority, now to become Gangmasters and Labour Abuse Authority (GLAA), a Director of Labour Market Enforcement, and the Modern Slavery Act. She concluded that trade unions want to restore the tripartite nature of the GLAA and wider licensing powers; sectoral collective bargaining including the Agricultural Wages Board and the right of unions to organise in every workplace. She emphasised that migrant workers have to remain at the heart of the trade union movement.

Download Diana Holland’s presentation

Dr Alex Balch, Senior Lecturer in Politics and International Relations, Liverpool University

Alex spoke about modern slavery issues and its impact on exploitation. He started by clarifying the terms used now to describe modern slavery and favoured the term “forced labour” which remains a problem in the UK. Currently about 10,000-13,000 people in the UK are subject to forced labour as evidenced by government and other state organisations. He criticised the vacuum that exists for labour inspectorates which fail to address the problem. He argued that general labour market characteristics and government policy aggravate the problem and the desire to deregulate human rights produces a labour market with a very patchy approach to enforcing labour rights.

Is forced labour inevitable in the UK? Alex suggested that the government approach to modern slavery is using legislation to address criminal activity. He questioned whether the Modern Slavery Act with its powers was adequate to deal with what the government regards as an immigration policy dealt with through the Immigration Act 2016. Alex reminded conference that the immigration policy of the past had created vulnerability and that Brexit now would be likely to create a lack of transparency as to individual rights which will work in the favour of employers over workers. This could lead to the risk of exploitation creep which raises the threshold for determining what amounts to exploitation, allowing other forms of exploitation to go unchecked. He warned that we are in danger of returning to a hands-off approach to enforcement leaving much of the economy un-inspected.

Download Alex Balch’s presentation

Alan Bogg, Professor of Labour Law, University of Oxford

Alan explained the recent developments in the law on illegality and migrant workers. He began by explaining that what he means by irregular migrant workers are workers who are undocumented and do not have a right to work in the UK. This is often compounded by working in an illegal practice which removes a number of working rights. This, he said, was known as the Illegality Doctrine, which dates back to a principle established in the case of Holman v Johnson (1775). Where an illegal claim was founded on an illegal act the court would not assist the complainant.

He went on to explain that irregular migrant workers will be acting illegally if they undertake work. In practice this would prevent unfair dismissal claims being pursued by an irregular migrant worker. An employment contract in such cases would be an illegal contract so therefore the worker could not make a claim based on an illegal contract. However, in the context of tort claims, discrimination cases in migrant worker cases, the illegality doctrine was much more forgiving towards migrant workers.

In the important case of Patel v Mirza the Supreme Court overcame conflicts which had arisen in the illegality doctrine. This case involved a dispute between two persons who were engaged in insider trading, which is illegal. The court decided that Mr Patel’s claim for unjust enrichment was fair. The court laid down a three-stage balancing test. Importantly, the court had to decide whether the claim was proportionate given the illegality of the transaction. The judgement does appear to approve of the decisions taken in previous cases. The Supreme Court has signalled that the application of illegality in employment cases had been unduly harsh.

Finally, Alan identified some problems with the Patel decision. Firstly there was no discussion of S. 34 Immigration Act, which defines illegal working; secondly, the balancing approach adopted in Patel effectively means many tribunal decisions will be immune from appeal if they correctly state the Patel decision; the absence of an exhaustive list of factors; and finally, post Brexit, the problems are likely to get worse as discrimination cases are ultimately subject to EU law and once this is removed it will be subject to British judges interpretation.

Download Alan Bogg’s presentation

Owen Espley, Senior Economic Justice Campaigner, War on Want

Owen talked about precarious employment and workers’ rights from the perspective of migrant workers. He told conference that the campaign is still in the process of development. He explained that the context of employment contracts and status of migrant workers and the practice that evolves from these mechanisms informed the campaign. Owen also raised again the issues of criminalisation and the Immigration Act 2014.

Their campaign focuses on precarious contracts and the migration system and how it can mobilise the public. Mobilising communities is an important source of support and Owen had drawn on the experience of the Fight for 15 campaign in the US. He also placed an emphasis on workplace abuse and workers in struggle. This is based on the right to work, equal social and labour rights and an end to criminalising communities. War on Want has processed the campaign through support to the Unite Sports Direct campaign and the Byron Burgers campaign.

Alex explained that War on Want is keen to learn from international partners and to expose the migration system’s erosion of workers’ rights and explore new ways for supporters to take action.

Dr Sonia McKay, Professor of European Socio-Legal Studies at the Working Lives Research Institute, London Metropolitan University

Sonia explained the sanctions applied to employers regarding undocumented migrants by referencing the research UndocNet (ESRC) based at The University of Manchester and London Metropolitan University. She began by saying that she was going to argue against employer sanctions, which was unusual for her. The research sought to understand the networks for migrant workers and whether these helped or hindered. It also looked at employers who employed undocumented migrants and what impact sanctions had on them.

Sonia said that the UK government refused to sign up to the EU Directive, as it allowed undocumented workers to be paid for work done. The sanction system in the UK targets certain employers, utilises unlawful use of power of entry and results in nearly six in ten lacking justification. The largest number of undocumented workers was identified as Australian by the government but the public do not appear to see this as a problem and you rarely see raids of premises where Australians work. She pointed to government statements justifying its action against undocumented workers by stating that illegal working results in abusive and exploitative behaviour. However, in practice those employers who were prepared to employ undocumented workers did so as they could pay less and demand long hours.

She said that neither employers nor trade unions support sanctions as they result in more exploitation with workers less likely to report violations and less likely to join a trade union. Strategies used by workers included not wearing a uniform whilst at work so that they could pretend to be a customer if raided or choose a workplace less likely to be raided such as domestic work. Employers also manage risk by employing temporary workers or at odd hours during the day.

Sonia argued that sanctions are a challenge to employment rights, they encourage employer malpractice and they create fear and distrust.

Download Sonia McKay’s paper
Download Sonia McKay’s presentation

Ake Achi, Right2WorkUK

Ake, a full time official from the GMB, explained how the Right2workuk campaign raises awareness on migration and employment issues in the UK. Ake identified that the high level English speaking requirement in the public sector was leading to abuse at work and unfair exploitation. Immigration law itself was a new lever for exploitation as workers do not understand the rules on the right to work, which enables the employer to take advantage. The other issue is human trafficking, which takes over workers who have been prevented from working as a result of employers seeking to avoid the risk of fines by dismissing them.

Ake said that poor understanding of immigration law, which is complex, aggravates the problem. He asserted that even trade unions lack knowledge in this area and thus workers in this situation lack necessary support. The cost of immigration lawyers is prohibitive, which adds to the problem. Ake used a real case to illustrate the problem through the failure of an employer to follow due process in checking the right to work shifts the burden of proof to the employee who is unable to obtain the information required and consequently a claim for unfair dismissal was dismissed. In essence, Ake said that the circumstances and processes were stacked against the worker.

Roger Jeary

Roger Jeary Roger Jeary retired from Unite in January 2012 after 33 year’s service as a negotiating officer and Director of Research. Roger worked in Northern Ireland, Manchester and London as an official of the union starting with ASTMS and then MSF and AMICUS before the final merger to Unite. In 2004 he was appointed Director of Research of Amicus and subsequently took on that role for Unite in 2007. Roger is a member of the Institute’s Publications Sub Committee. Currently Roger is a Trustee Director of FairPensions, an independent member of the ACAS Panel of Arbitrators, sits on the Advisory Panel of the IPA and is a member of the Manufacturing Policy Panel of the Institute of Engineering & Technology (IET).