Summary

This OM outlines work activity in connection with migrant workers to be carried out by FOD inspectors (other than in Construction Division) in 2009/10.

Background

Migrant workers may be ‘vulnerable workers’, a term used to describe workers including both UK citizens and migrants, employed under a variety of types of casual and temporary contracts who are at risk of abuse and exploitation. Such workers may be older, young persons, students, or those with poor language skills.

Migration to the UK continues to have a high political and media profile and to generate concerns about abuse and exploitation. These concerns cover a range of issues including occupational health and safety which features from time-to-time, often in conjunction with other allegations about for example, low wages, illegal deductions from wages and poor living conditions.

The problems of managing the health and safety of vulnerable and migrant workers are broadly similar. However, in addition to generic issues such as the allocation of responsibility for the conduct of risk assessments and the implementation of control measures including the provision of information, instruction, training, personal protective equipment etc. and for the notification of accidents and cases of ill health, migrant workers can also present managerial challenges in respect of language, supervision and diversity.

More detailed background information and guidance can be found in the Migrant Worker Topic Inspection Pack [220KB].

Aims and objectives

The Health and Safety Executive has consistently affirmed that all workers in Great Britain (GB) are afforded the protection of health and safety law, irrespective of their migration status. In this context the aims of work activity in 2009/10 are:

• To reduce and minimise the level of risk, injury and ill health experienced by migrant workers in those sectors for which HSE is the enforcing authority under the Health and Safety (Enforcing Authority) Regulations 1998 through  inspection and other activities (listed below) - other than in construction which is subject to a separate programme of work; and
• Subject to legal constraints, to share and exchange intelligence and information about the employment of migrants and support joint initiatives on workplace enforcement with relevant (OGDs) and non-governmental agencies.

Delivery of this work is a political imperative.

Workstreams

Proactive inspection and activity

FOD Management Board has agreed that vulnerable workers are one of a selection of issues that form mainstream work to be addressed as part of the examination of a duty holder’s management of health and safety. The focus of inspection activity on migrant workers in 2009/10 should be assessment of the arrangements and conditions under which they are employed, at all site visits where they are known to be or are suspected of being employed - irrespective of industry. Divisions are asked to target some of this activity at early, late and night shift working.

This work lends itself to intelligence-led, targeted inspection in industries where migrants are known to be employed in significant numbers, to local projects and to initiatives to tackle emerging areas concern e.g. contract cleaning.

In developing initiatives, Divisions are asked to consult and liaise with the Head of the Policy, Employment and Project Office Section of the Agriculture & Food Sector, Samantha Peace who has oversight on behalf of FOD (with the exception of Construction Division) to benefit from lessons learned, to ensure a consistent approach and to avoid un-necessary duplication of activity and effort.

Guidance on the issues to be considered at visits is set out at Appendix 1.

In addition Divisions should:

• Where appropriate and relevant, continue to cooperate and work with the local Sea Fisheries Committees in England and Wales and with the relevant Scottish Government department in Scotland and collaborate in the activities described in SIM 01/2004/04 - Agriculture – FOD programme of work 2004-2005: shellfish harvesting in estuaries and tidal areas
• Cooperate, support and work with OGDs, local authorities and agencies in initiatives at regional/local levels such as joint operations or blitzes;
• Develop and maintain good and effective relationships with other active stakeholders and non-Governmental agencies such as local police forces, the Regional Development Agencies, Local Authorities and local Citizens Advice Bureaux;
• Cooperate with and support regional or local initiatives with non-Governmental agencies, industry and/or other stakeholders (including the social partner organisations) targeted inter-alia at raising standards of health and safety for migrant workers in sectors for which HSE is the enforcing authority.

Sharing and exchanging intelligence

New cross-Government arrangements are being put in place to tackle illegal labour provision and other employment abuses affecting migrant workers through virtual and other intelligence sharing networks and arrangements. These arrangements include a Fair Employment Enforcement Board, created by the Department for Business, Enterprise and Regulatory Reform (BERR), together with a Best Practice working group. The Best Practice group is working to introduce a new ‘single enforcement helpline’ for vulnerable workers. HSE has nominated a ‘Single Point of Contact’, Kevin Francis, to receive intelligence about working time matters only under this scheme.

In a context of complex labour supply arrangements, intelligence arising out of the regulatory activities of OGDs, local authorities and agencies in one part of the country and passed to HSE through these mechanisms, can relate to migrant workers in any industry, anywhere in GB. Relevant intelligence received by the Head of the Policy, Employment and Project Office Section of the Agriculture & Food Sector Samantha Peace as a central contact for other agencies will be forwarded to Divisions by e-mail.

Notwithstanding this arrangement, Divisions are asked to co-operate with and participate in:

• Regional or local joint/cross-departmental initiatives to share and exchange information on migrant working - subject to existing legal gateways - where and to the extent that they are invited to do so by OGDs, local authorities and agencies. This includes initiatives with the Gangmaster Licensing Authority (GLA);
• Planned joint exercises where the perceived benefits contribute to or support the aim of reducing and minimising the level of risk, injury and ill health experienced by migrant workers. Any involvement in joint initiatives or operations with other enforcement agencies, including in particular the GLA will be subject to the guidance in OC 205/1 ‘Illegal Employment: Joint operations with other enforcement agencies ’ and relevant Memoranda of Understanding (MoUs).

Detailed information, guidance and support on the gateways to the sharing, exchange and use of information by HSE under existing legal provisions, on MoUs and other relevant matters is contained in the Migrant Worker Topic Inspection Pack [PDF 220KB]. Inspectors will be alerted to changes in the guidance as required.

Reactive work

Under the terms of MoUs with the Home Office (Border and Immigration Agency) and the GLA, it is expected that HSE will receive intelligence about labour providers ‘and users’ failures to comply with health and safety legislation as a result of the GLA’s licensing, enforcement and other intelligence activities in respect of the agriculture and agricultural produce processing sectors.

The intelligence generated may relate to un-reported accidents and cases of ill health, or complaints about working conditions or other failures to comply with health and safety legislation. Relevant intelligence received by the Head of the Policy, Employment and Project Office Section of the Agriculture & Food Sector Samantha Peace as a central contact for other agencies will be forwarded to Divisions by e-mail.

Divisions may also receive information informally from the GLA’s geographically based Compliance and Enforcement Officers about potentially adverse working conditions and/or suspected systemic health and safety management failures. Information supplied by this route should be assessed and evaluated locally but given the sensitivity of the issues and concerns over joined-up Government, Divisions should act on the presumption that where practicable, these issues should be investigated.

Accordingly Divisions are asked to:

• Follow up on intelligence forwarded by the Sector within the limits of available resource and inform the Sector of the outcome;
• Investigate any accident or case of ill health involving migrant workers reported under RIDDOR 1995 in FOD enforced sectors or drawn to its attention by other routes; and
• Investigate any complaints received involving migrant workers.

Resources

This work will draw on the overall resource allocated to inspection and other planned activity when dealing with mainstream work issues during the examination of a duty holder’s management of health and safety and reactive work demands.

Work recording

Inspectors should record the progress of operational work; key decisions made and the outcome of interventions in the Notes facility attached to a COIN record in the normal way.  Detailed inspection reports may also be attached. These should be brief but contain enough details to enable the Sector to understand the activities Divisions have been involved in and the action taken.

When investigating accidents where the injured person is a migrant worker, inspectors should record this fact and their country of origin by completing the checkbox and data field on the Incident page. Where language issues are judged to have played a part in the accidents cause, that fact should be recorded on the Incident Analysis page as an underlying cause.

Other issues to be aware of

The topic packs on Duty to Manage Asbestos, and Worker Consultation and Involvement may also be relevant and useful when dealing with migrant workers.

Diversity

Inspectors should be aware of who (in terms of diversity e.g. men, women, disabled etc) is the target group in the sector they are dealing with. Give consideration to, and factor into the approach, any issues that may surround this audience such as literacy issues, English as a second language and disability (access needs).

The Diversity pages give more information on these areas.

Further information

The Head of the Policy, Employment and Project Office Section of the Sector, Samantha Peace (based in the Nottingham HSE Office) can provide advice, guidance and support to Divisions on request.

Appendix 1 - Key issues re: vulnerable and migrant workers

Inspectors should focus on the following issues at inspection visits where vulnerable and migrant workers are known to be, or suspected of being, employed.

1. Does the duty holder employ them directly or are they supplied by an employment agency or other labour supplier?
2. If supplied by an agency or labour provider, is it based in the UK or abroad?
3. If supplied by an agency or labour supplier, is the labour provider licensed with the Gangmaster Licensing Authority (GLA)?N.B. If not, advise that it needs to be and that the GLA will be informed.
4. Who is responsible for the workers' health and safety? The employing business i.e. the labour user or the labour provider?
5. Has a suitable and sufficient assessment of the risks to which the workers are exposed been carried out?
6. Does it take account of the particular needs of non-UK nationals; in particular does it take account of language issues?
7. If relevant, does it address the issues of compatibility/equivalence of vocational qualifications e.g. lift truck driving qualifications obtained abroad?
8. Have the workers been provided with necessary and relevant information as to risks, instruction, induction and other health and safety training?
9. Has it been provided in a comprehensible format?
10. What steps have been taken to ensure that it has been understood and is acted upon?
11. Are the workers adequately supervised and can they communicate with their supervisors?
12. How and to whom can they raise any concerns about their health and safety?
13. If relevant, has necessary and suitable PPE been provided - without cost to the workers?
14. Has suitable provision for toilet, washing facilities and toilet breaks been made?
15. Has provision been made to ensure that Employers’ Compulsory Liability Insurance is in place that covers the workers on the labour user’s premises?
16. If relevant, have appropriate and suitable arrangements been made to transport workers to and from their place of work? Are the drivers suitably qualified and are the vehicles suitable and properly maintained?
17. Where domestic accommodations is provided for the workers, if appropriate and required, are copies of current gas safety certificates made available and is the electrical supply safe?
18. Are accurate records of the hours being worked kept and available for inspection? Do the terms and conditions under which they are employed comply with the Working Time Regulations 1998? Are sufficient breaks permitted and do workers receive sufficient periods of rest?
19. Are suitable arrangements in place for recording and reporting accidents and cases of ill health?
20. Are suitable systems in place for first aid (including hospital) treatment, and any necessary health surveillance?