Last reviewed 12 February 2020
Barrister Robert Spicer reports on a recent High Court decision which looked at a case surrounding the exploitative working conditions of migrant workers, gangmasters and the personal liability of company officers.
The facts of the case
The recent High Court decision in the case of Antuzis v DJ Houghton Catching Services Ltd (2019) has given guidance on migrant workers.
The facts, in summary, were that a group of Lithuanian workers were engaged in Lithuania to catch chickens at farms throughout Britain. Their employment was subject to the regulatory regime of the Gangmasters (Licensing) Act 2004.
They claimed that they were employed in an exploitative way. They were paid less than the statutory minimum prescribed by the Agricultural Wages Act 1948 and the Agricultural Wages (England and Wales) Order 2012. They were obliged to work shifts without respite, to sleep in a minibus between farms and worked many more hours than those recorded on their payslips. Their wages could be withheld as a form of punishment for spurious reasons. Deductions were unlawfully made for employment fees and rent. One of them was not allowed to take bereavement leave. They had been engaged in Lithuania by middlemen who charged a fee and were promised work which bore no relation to the reality of their working conditions.
They complained to the High Court of breaches of contract, including failure to pay the minimum wage, the charging of unlawful employment fees, the arbitrary withholding of wages and failure to pay holiday pay. The claims were made against the company which employed them, the company secretary and the company director.
The High Court decided as follows.
The claimants were all telling the truth. A gruelling and exploitative work regime had been imposed upon them by the defendants.
The company secretary and director were thoroughly unsatisfactory witnesses. They were fully aware of their legal obligations.
The evidence was overwhelming that they had operated the company in a deliberate and systematic manner, whereby chicken catchers were working massively more than the hours recorded on the payslips.
They operated a system of withholding wages for entirely invalid reasons and trapped workers, leaving them little option but to remain.
The company was liable. Although there was no written contract, there were breaches of contract under agricultural wages legislation.
Darrell Houghton, the sole director of the company, and Jackie Judge, the company secretary, were personally liable for the breaches. They had caused the company to act in breach of its obligations and they knew that this was what they were doing.
They had ruined the company’s reputation and they had not acted bona fide. Neither honestly believed that they were paying chicken catchers the minimum wage, overtime and holiday pay or that they were entitled to withhold payments. As a matter of law, they were completely unable to act in that way.
History of the Gangmasters Act
The Gangmasters (Licensing) Act 2004 was introduced following the 2004 Morecambe Bay cockling disaster. In February 2004, at least 21 Chinese illegal immigrant labourers were drowned by the incoming tide while picking cockles in Morecambe Bay. Their pay was £5 per 25kg of cockles, far less than the standard rate. They had been unlawfully brought into Britain by containers through the port of Liverpool and were hired out through criminal organisations. The workers were unfamiliar with local geography and spoke limited English. They were untrained and had no experience of the work. Gangmaster Lin Liang Ren was convicted of the manslaughter of 21 people and was sentenced to 12 years’ imprisonment.
The legal situation regarding migrant workers
Since the enlargement of the EU, with the general principle that citizens of EU states have the right of free movement to work, increasing numbers of migrant workers have found employment in the UK. Migrant workers are generally regarded as being highly motivated, reliable and committed. However, many of these workers do not have a fluent grasp of English and may be particularly vulnerable to failings in health and safety practices. The large number of migrant workers from central and eastern Europe currently employed in the UK has started to make an impact on health and safety and employment law.
These workers may be prepared to accept lower wages than their British counterparts, because wages in their home countries are far lower than those in the UK for comparable work. Those migrant workers who are highly educated find themselves in a position where they are not familiar with their employment rights. They may feel that they are in a vulnerable position in a foreign country with whose laws and customs they are unfamiliar. English employment tribunals and courts are increasingly demonstrating an awareness of this position.
The Health and Safety Executive (HSE) has shown itself to be well aware of these problems. It has issued detailed advice and guidance on the proper management of migrant workers’ health and safety. The HSE recognises that factors such as poor language skills and unfamiliarity with the workplace can magnify the effects of existing health and safety problems. It advises that migrant workers with better English should be asked to interpret for their less fluent colleagues. Internationally recognised signs, videos or audio materials can be used to communicate health and safety messages.
In general, tribunals and courts have expressly recognised the problems arising in relation to large numbers of workers with a limited grasp of English language, law and culture. Spokespersons for the HSE have repeatedly commented on the vulnerability of such employees in relation to health and safety.
The potential effect of Brexit on these issues is far from clear.
Previous cases involving migrant workers
An example of a prosecution involving migrant workers is that of Shah Nawaz Pola, who was fined and imprisoned in August 2007 following an incident in which a worker suffered life-threatening injuries on a construction site.
Pola had employed a number of migrant Slovakian workers to build an extension to a house in Bradford. He paid them each £30 a day in cash.
In November 2005, Dusan Dudi, one of the workers, fell from inadequately constructed scaffolding when the wall which he was demolishing collapsed on him. A concrete lintel struck him on the head. He suffered injuries which it was believed would be fatal.
However, when Dudi’s life support machine was switched off in hospital, he survived. He was left with severe disabilities and it is thought that he will never work again. He is ineligible for benefits in the UK and in Slovakia, where he now resides, needing constant care.
Pola had no experience of running a construction site. When he was told by an HSE inspector what needed to be done to protect the safety of workers, he replied that he did not care. Pola had made no concessions at all to health and safety. He had not written a risk assessment nor method statements. He had failed to provide welfare facilities, proper scaffolding, adequate fall guards or personal protective equipment for his workforce. A number of contractors had left the site because safety standards were so poor.
Pola was fined £90,000 and sentenced to prison for six months.