Directors have a key role to play in ensuring that their organisations maintain good health and safety practices in order to avoid prosecution.
This briefing will give you the essential background information and advice on implementing the necessary arrangements to avoid prosecution.
Employers have a general duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees under the Health and Safety at Work, etc Act 1974. The employment of migrant workers is subject to the same health and safety legal standards as the employment of any other worker in the UK. Whether legal or illegal, migrant workers have the same rights and responsibilities as UK workers under UK legislation.
According to the Migration Observatory, EU born people made up 7.6% of working-age employment in 2017 in the UK, with non-EU born workers accounting for 10.3%. Retail, wholesale and hospitality are the largest group of industries employing the EU born, while non-EU born workers are more likely to be in public administration and education.
The health and safety issues to consider when employing migrant workers include the potential language and cultural barriers, as well as the competence and qualifications of each migrant worker, ensuring that both are of a standard that will enable them to carry out their jobs safely.
Under the Health and Safety at Work, etc Act 1974, employers have a duty to inform migrant workers about:
risks to their health and safety from current or proposed working practices
equipment, materials or changes that may harm or affect their health and safety
how to do their jobs safely
what is done to protect their health and safety
how to get first-aid treatment
what to do in an emergency.
Under the Management of Health and Safety at Work Regulations 1999, employers have a duty to carry out suitable and sufficient assessments of the risks faced by their employees and this must include migrant workers.
Employers must also provide:
sufficient training to migrant workers to enable them to do their jobs safely, including instruction on the meanings of health and safety signs
personal protection equipment for migrant workers when necessary
health checks to migrant workers if there is a danger of possible ill health because of the nature of their work
regular health checks if migrants work on night shifts and a health check prior to starting night work.
All employers must check and satisfy themselves that any individual is entitled to work in the UK and that their documents are valid and do relate to them.
Issues arising from employing migrant workers
It is a criminal offence to employ a person who has either:
no right to work in the UK
no right to do the work that is being offered.
Employers must check and satisfy themselves that any individual is entitled to work in the UK. However, care must be taken to avoid discriminatory recruitment practices.
According to the UK Government, between 1 October–31 December 2017, Immigration Enforcement issued 624 civil penalties to businesses employing illegal workers. Penalties amounted to £11.6 million. Additional costs to companies found to be employing illegal workers include time taken away from work activities due to investigations, training and recruitment of temporary staff.
You can be sent to jail for five years and pay an unlimited fine if you’re found guilty of employing someone who you knew or had “reasonable cause to believe” didn’t have the right to work in the UK.
It should be noted that under the Immigration Act 2016, an immigration officer may close a business premises for up to 48 hours if there are illegal immigrants working on the premises.
Factors that potentially make migrant workers more vulnerable to risk include:
lack of ability to communicate effectively particularly in relation to an understanding of risk
access to limited health and safety training and, where proficiency in English is limited, difficulties in understanding what is being offered
working relatively short periods of time in the UK
limited or no knowledge of the UK’s health and safety system
lack of knowledge of workplace safety signs, including fire and emergency evacuation signs
different experiences of health and safety regimes in their countries of origin
motivations in coming to the UK (eg high earnings) could encourage them to take more risks and bypass safety rules
the failure of employers to check their work abilities and their language skills
uncertainty about their employment relationships (employed through recruitment agencies, labour providers or are self-employed) and therefore where health and safety responsibilities lie
lack of knowledge about health and safety rights, how to raise them and the channels through which they can be represented.
There may also be differences in work processes, behaviour, equipment, materials, legislation and even units of measurement from those in the worker's own country.
Directors must ensure that the health and safety legislation and best practice is fully implemented for all employees including migrant workers throughout the organisation. Their managers must be aware of the role that they play in ensuring that the organisation discharges its duty of care in keeping migrant workers informed on how to work safely.
Directors should ensure that appropriate policies and strategies relating to hours of work, such as a flexible working policy, are in place to provide guidance and information to managers, who in turn can cascade the information down to all workers.
Relevant case law relating to the employment of migrant workers includes the following.
In R v Martinisation (London) Limited and Gutaj (2017) company director Martin Gutaj was jailed for 14 months for two breaches of s.37 of the Health and Safety at Work, etc Act 1974 after two migrant workers died trying to haul a sofa onto a first-floor balcony. It was found that none of the training documents were in Polish, despite the workers not speaking English and a plan, method statement or risk assessment had not been provided before work commenced. The company was fined £1.2 million.
Last reviewed 17 October 2018