Heading for change

With the huge influx of migrant workers into the UK’s construction industry in the run up to the 2012 Olympics, Graham Paul looks at how sensible planning can ensure employers stay on the right side of the law.

London’s successful bid for the 2012 Olympics and the subsequent influx of migrant staff into the UK construction industry has highlighted certain issues organisations must overcome when engaging migrant workers.

Of course, the migrant workforce has been one of the cornerstones of the UK economy for some time now. In many cases, the engagement of migrant staff has proved to be the only method by which skill shortages in the construction, transport, security, tourism and IT sectors have been able to be filled.

The current strong UK economic performance and greater labour market flexibility means the influx of migrant workers is only likely to increase in the near future. It is, therefore, imperative that organisations have effective policies and procedures in place to be able to successfully deal with the legal issues that may arise when engaging such workers.

Organisations must make clear from the start the basis on which they are engaging the migrant staff. Is there to be a relationship of employer/employee, or is the migrant worker simply going to work for the organisation under a contract for services?

Either way, thought should always be directed to compliance with current immigration law. If you are engaging a migrant worker through an agency, then the agency has the principal duty to make the appropriate checks. However, if the migrant worker is to be employed, whether on a fixed-term contract or not, the appropriate checks must be made by the employing organisation before the individual in question is taken on.

The Immigration, Asylum and Nationality Act 2006 gained Royal Assent on 30 March 2006, but its terms are gradually coming into force over the next year or so. This introduces a new civil penalties scheme – introducing fines and/or the possibility of custodial sentences of up to two years for those organisations employing illegal workers. With employers being exposed to greater penalties for employing those who do not have a right to work in the UK, it is essential that recruitment processes and the personnel responsible for recruitment within the employer’s organisation are aware of the evidence which is required to satisfy the relevant legislation.

Clearly defined

Obviously, the status of an employee brings with it far greater protection than that of an individual worker or contractor. As has been played out recently in the cases of Dacas v Brook Street Bureau and Cable & Wireless v Muscat, courts are increasingly looking to ‘pierce the veil’ of complicated contractual relationships to pinpoint who exactly the employer is or should be. An organisation may be at risk of being determined as the employer, even when the intention is simply to engage an individual as an independent contractor. The message is clear: setting up the correct contractual terms may not be enough to evidence the status of ‘worker’, rather than ’employee’.

Organisations using agency staff or contracting directly with individuals must also monitor the ongoing circumstances of the engagement before they can be assured of protection against certain claims linked to employment. You should assess the risk of employment rights arising from the outset.

One of the major risks is claims from migrant workers who feel that they are being directly or indirectly discriminated against. Remember that migrant staff who are employed by an organisation are able to look to the same remedies under UK employment law as its other employees. Employers should not become complacent with their employment practices. While the right to claim unfair dismissal is generally restricted to employees with more than one year’s service, you should be aware that some claims can be brought from the first day of employment (and in certain circumstances even before the first day).

Disquiet and tension

An influx of migrant staff can often lead to disquiet and tension within the existing workforce, and it is becoming increasingly common for some employers to favour engaging migrants over local staff as they have vital skills that are missing in the local workforce. Unfortunately, this change in the make-up of the workforce can result in conflict, and lead to a greater risk of harassment, victimisation and discrimination claims.

Robust disciplinary and grievance policies are essential if an organisation is to deal with these issues as they arise. Failure to do so can lead to employment claims and loss of management time in dealing with the matter, which both can affect the productivity of the business as a whole, as well as the morale of the existing workforce.

Health and safety should also be a major concern for all employers. Horror stories – such as the 18 cockle pickers who died in Morecambe Bay in 2004 – have highlighted the plight of some migrant staff in the UK, and the poor conditions under which they are required to work. Hopefully, such stories are a thing of the past, but the fact that 14 migrants died during the building work prior to the Athens Olympics, as well as 26 who died during the building of the supporting infrastructure, should put everyone on the alert, considering the timescales over which some of the 2012 London Olympics projects are to be delivered.

It is important that adequate training is given to all workers (especially migrant workers) to ensure health and safety policies and procedures are understood and followed. And, no doubt, organisations would rather spend the time and expense in arranging a basic English language course instead of having to deal with an accident in the workplace later caused by communication problems.

While migrant workers will always be an essential component in many workforces, and there will always be risks to overcome, most of these can be tackled through sensible planning and practical implementation of thorough employment policies and procedures.

Graham Paul, partner in the employment group at Dundas & Wilson

Key duties

  • Ensure your immigration policies are well-known and well-practised to reduce the chances of getting things wrong.
  • Ensure the basis on which the migrant worker is employed/engaged is clear, and that your written documentation backs this up.
  • Ensure your grievance and disciplinary policies are robust, clear and easy to follow, so that any workplace disputes can be dealt with as soon as practically possible.
  • Comply with all appropriate employment legislation (for example, the national minimum wage), and treat migrant workers the same as their other colleagues.
  • Develop and promote workplace strategies to combat discrimination towards migrants.

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