The refugee crisis in the Middle East has led to a large influx into Europe and many of these people may eventually find their way into the UK workforce. Andrew Christodoulou considers the attendant issues.
The numbers of migrant workers in the UK workforce have been increasing, current crisis aside. Estimates show that the number of foreign-born people of working age in the UK increased from 2.9 million in 1993 to 6.6 million in 2014 and that the share of foreign-born persons in total employment increased from 7.2% in 1993 to 16.7% in 2014.
Therefore, the challenging issue of ensuring the health and safety of migrant workers is not likely to diminish in the near future and organisations that employ migrant workers need to make sure that they are up to the challenge. Accidents to migrant workers — serious and fatal — continue to happen because the special nature of employing a migrant worker is often not taken into account.
The law considers migrant workers to be “special” in that they require a greater duty of care because in many cases they are vulnerable.
A famous case explaining vulnerability is Paris v Stepney Borough Council (1951), where a one-eyed man, P, was not provided with goggles and therefore was left completely blind when a metal splinter entered his good eye. It was held that P’s employer was liable for damages as it could be foreseen that there was a greater risk of injury to this particular employee. The fact that the employer was not under a duty to provide goggles to other employees was irrelevant. P was a vulnerable worker who required a higher duty of care than the rest of the workforce.
A higher standard of care is also owed to employees whose command of the English language is lacking. In James v Hepworth and Grandage Ltd (1967), the employers put up large notices requiring employees to wear personal protective equipment. One employee could not read and successfully claimed damages from his employer when he was injured. The circumstances of this case may equally apply to some migrant workers.
Statute law, too, expects employers to take account of any special vulnerabilities in their workforce. This might include youth, pregnancy, inexperience, and also the special nature of migrant workers. The Health and Safety at Work, etc Act 1974 is, by its nature, flexible. With its requirements based on what is “reasonably practicable”, it is designed to set different standards for different risk scenarios, including those for migrant workers. The requirements of the Management of Health and Safety at Work Regulations 1999 and associated regulations are centred around the need to carry out risk assessments, which by definition mean that cases of special vulnerabilities will be accounted for.
Migrant workers are special for a number of reasons. They may not be able to easily understand English, and many migrant workers do not wish to admit to their limitations in English for fear of losing their job or not being employed in the first place. Therefore, health and safety training and instruction in English may not be effective whether such communication is verbal or written. Where safety instruction and emergency signs are in English and the migrant does not read English, the risk of hazard and injury obviously increases. Employers need to check language skills on recruitment and, where necessary, use translators.
There are often cultural differences too, which may affect the workers’ approach to health and safety in the workplace, their attitudes to health and safety and their perception of risk. Many come from countries where health and safety standards are low and where taking risks in the workplace is “part of the job”. Often basic health and safety procedures such as fire evacuation procedures are not appreciated. Many come from countries where there are few rights for employees and so do not understand or appreciate the rights they have when working in the UK. Employers should ensure their key health and safety messages are understood by migrant workers, and that these are reinforced by the actions and behaviour of managers and supervisors.
Gender issues can make certain migrant workers more vulnerable. Women are unlikely to have their gender taken into account for risk assessment purposes when work is allocated. Also, women migrant workers are often reluctant to admit that they have become pregnant for fear of losing wages due to being forced to stop work early, or having their hours of work reduced.
Migrant workers are not always aware of the legislation concerning breaks from work and hours of work. Employers should be clear on the requirements of the Working Time Regulations.
Employment through gang masters can lead to poor implementation of health and safety requirements and potential exploitation of migrant workers. The employment relationship is often unclear and not understood by the migrant worker. There can be confusion about who is the employer and the knock-on effect can be that health and safety responsibilities are also unclear.
Employers must take action
The Health and Safety Executive (HSE) has dedicated a section of its website to the issue of migrant workers and how to keep them safe (see HSE website), and it also has a number of publications guiding employers and the workers themselves through the process of protecting migrant workers.
The key element is communication. Employers of migrant workers should communicate:
the risks associated with the jobs being done
the expectations of working safely: in terms of procedures, behaviour and what workers should bring to the attention of the employer
the information, protective equipment and training needed to work safely
safety signs in a language that workers understand
with an experienced supervisor the workers can understand and be understood by
how to get first aid treatment
what to do in an emergency.
In 2006, the HSE commissioned research into the area of migrant workers and their health and safety. This can be found at RR502 Migrant Workers in England and Wales. An Assessment of Migrant Worker Health and Safety Risks. The research was based mainly on face-to-face interviews with migrant workers and highlighted the problems faced by migrant workers with respect to health and safety.
Some of the comments from the migrants themselves give a vivid picture of some of the issues.
On training, a Polish worker remarked:
“They [Polish agency workers] don’t have any training… for them to get training, it means the company have to spend the money on them and they cannot start spending money on them.”
Another worker (an East European Male) highlighted the difference between native and migrant workers:
“no training... basically, if you manage, you manage. As far as the English were concerned, I know they had some training. They were actually treated differently. And us, we come and we have to cope ourselves and earn from the very beginning… and the English they have time to prepare”.
In some cases, migrant workers would not admit to not understanding the training either for fear of losing or not getting their job:
“if they give information… me… every time say yes, yes… because people scared if I don’t understand, they sack you”.
In some cases, records were falsified to say training had been given:
“they [the employers] were such cheaters - they make the men sign they have received training, but actually there have been no trainings at all”.
When accidents occurred, some migrant workers were concerned for their jobs:
“his fingers were crushed and one of his nails ripped off. But he was afraid. It wasn’t his fault the machine wasn’t secured. He didn’t pursue it any further since he was afraid. The union would have helped him, but he said that he’d have problems and they’d fire him”.
These quotations vividly describe some of the issues faced by migrant workers and are a warning to employers. Without action by employers, accidents to migrant workers will continue.
Last reviewed 6 May 2016