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Appendix 1:  Memorandum of Understanding - Cross-government co-operation on the Workplace Joint Working Protocol

Introduction

The Government wishes to support legitimate businesses in complying with their legal obligations, to ensure decent working conditions for all workers in the United Kingdom, and to take effective action against rogue groups and individuals who seek unfair profit and advantage by evading their responsibilities under the law. The Government has introduced a radical programme of reform to strengthen our border controls and put in place a new partnership with employers to regulate the process for recruiting skilled workers into the country from outside the European Economic Area and to crack down on the trade in illegal migrant workers. The Government believes that the burden of regulation on business should be no greater than necessary and that enforcement activity by departments and agencies should be properly targeted on the basis of risk and intelligence.

A number of different Government departments and agencies are responsible for administering and enforcing separate rules and legislation in the workplace. Officials in each department or agency have their own distinct legal powers and their own focus and objectives when requesting or considering information from a business or visiting premises in the normal course of their duties. This specialisation enables departments and agencies to maximise their professional effectiveness and deliver for the public.

However, there is strong anecdotal evidence (including from the Joint Workplace Enforcement Pilot in the West Midlands established under a Home Office lead in September 2005) that groups and individuals who fail to comply with one type of workplace regulation are likely to be in breach of other workplace regulations. The use of illegal migrant workers can be part of a pattern of illegality for the purpose of avoiding other workplace duties and regulations, such as national insurance and the national minimum wage, to secure financial gain or unfair competitive advantage.

Although the focus of this protocol is on co-operation in dealing with employers rather than employees, all partners need to be able to recognise the potential indicators of human trafficking. Such cases will be at the extreme end of worker exploitation, may or may not involve illegal immigration and are likely to occur in conjunction with other work place violations.

The Government believes it is essential that the different departments and agencies responsible for visiting premises and enforcing workplace regulations should, where the law permits it, share intelligence when officials encounter serious issues that could be of concern to their counterparts in other departments. Departments should also collaborate in planning or sequencing targeted enforcement activity when a business is detected having engaged in serious illegal behaviour of interest to more than one department.

This quick-reference document aims to provide workplace enforcement and inspection staff with a brief overview of the workplace responsibilities of various government agencies. It also seeks to help those agencies recognise key issues of potential concern to other government departments in relation to workplace abuses, such as the use and exploitation of migrants who may be working illegally in the UK, and encourages the sharing of this information, where legislation allows.

The production of this document is one of a range of steps which government agencies are taking towards sharing intelligence, improving collaborative working, and the creation of immigration crime partnerships across the United Kingdom. This document provides a foundation for the development of closer collaboration, including local working level partnerships. It will be reviewed as models for co-operative working develop and progress, and to reflect outcomes from the government’s Vulnerable Worker Enforcement Forum which will report later this year with proposals for raising levels of compliance with employment rights and related legislation.

The roles of workplace enforcement agencies

The following is a brief overview of the workplace enforcement responsibilities of various government agencies.

UK Border Agency (UKBA)

Department for Work and Pensions (DWP)

Employment Agency Standards Inspectorate (EAS) - Part of the Department for Business Innovation and Skills (BIS)

Health & Safety Executive (HSE)

Gangmasters Licensing Authority (GLA)

Local Authorities (LAs)

United Kingdom Human Trafficking Centre (UKHTC)

HM Revenue and Customs (HMRC)1

National Minimum Wage (NMW) - enforced by HM Revenue and Customs

Agricultural Minimum Wage in England & Wales (AMW) - enforced by the Department for Environment, Food and Rural Affairs

Information sharing principles

The role of individual officers

It is recognised that officials in each department or agency will have their own distinct legal powers and their own focus and objectives when requesting or considering information from a business or visiting places of work. Officials should not be distracted from their primary statutory function and therefore will not necessarily be expected to encounter any or all of potential indicators of non-compliance. Rather it is expected that if, during their normal course of duty, an officer encounters information that may be of interest to another agency, s/he should consider whether that information could be usefully and lawfully passed on.

When to share information

The intention of this document is not to overload departments with reports of suspicions which do not have an objective basis. Officers should therefore exercise judgement, and only share information about a specific business with other agencies when multiple issues of concern are observed, or if they consider that the level of non-compliance is sufficient to give another agency serious cause for concern (unless the use of false names or identities is encountered, in which case the UK Border Agency should be informed [via the SPoC] even if no other issue of concern is observed). 

Officers should be aware that BIS’s Companies Investigation Branch (CIB), which is part of the Insolvency Service executive agency, has powers under the Companies Act to investigate companies suspected of abusing limited liability, engaging in financial fraud and operating scams against businesses and consumers. CIB has no regulatory responsibilities or enforcement role regarding employment legislation but can seek to wind up companies in the public interest, prosecute and disqualify unfit directors as a result of its investigations.  There may be a small number of cases where a referral to CIB may be useful. These should be discussed on a case-by-case basis with its Vetting Section. Officers encountering such cases should in the first instance contact the [relevant] BIS contact [via SPoC].

Sharing information lawfully

Officials must not exceed their legal powers or act unlawfully. The emphasis is on the proper exchange of intelligence where permitted under the law to support targeted enforcement activity and investigations and to prevent abuse, harm or injury to workers in vulnerable conditions, including migrant workers subject to immigration control.

Before sharing information, officers must ensure that they are legally entitled to do so and comply with the Human Rights Act (1998), the Data Protection Act (1998), and additional legislation governing the exchange of information between government agencies. There are criminal sanctions for wrongfully disclosing information in some circumstances. Officers should seek advice from experts in their parent department where necessary to ensure they do not act unlawfully.

In addition, officers should ensure that they comply with their parent department’s policy and procedures on exchanging information with other government departments before contacting another agency.

Joint action-planning

In many cases sanctions and penalties against a business may be better pursued separately given the different timescales likely to be involved. However, where an employer poses a substantial compliance risk to more than one department or agency, there will be a case for departments to collaborate beyond the initial exchange of intelligence to discuss the most effective way of tackling the offender, and where appropriate plan for either contemporaneous or properly sequenced enforcement activity.

At the extreme end, where the organised facilitation of illegal labour or human trafficking is involved, it will be important for all Departments to refer the case to the Serious Organised Crime Agency and the UK Human Trafficking Centre and provide those agencies with any assistance necessary.

Issues of potential interest

The table below sets out a number of readily observable characteristics of a workplace, which have been identified by enforcement bodies as potential indicators of non-compliance with one or more aspects of workplace legislation.  When seen in combination, they can build up a picture of behaviours by a business that may be of concern or interest to key contacts in other agencies.

Before contacting any agency to pass on information, officers should refer to the section on ‘roles of workplace enforcement agencies’ above to ensure that the issue of concern relates to that agency’s area of responsibility. For example, officers should only pass information to GLA if the issue of concern relates to one of GLA’s regulated sectors, which are agriculture, forestry, horticulture, shellfish gathering and food processing. For health and safety issues, officers should check whether the issue of concern relates to the HSE’s or relevant local authority’s area of responsibility.

Issues of concern

Contracts / conditions of employment
Issues of concern Key contacts for sharing information
UKBA HMRC & NMW HSE or LA EAS GLA AMW DWP UKHTC

Employers providing apprenticeships or training (those who offer a training day but do not pay the worker for it, those who pretend a worker is an apprentice, and those who fail to pay National Minimum Wage to apprentices at the appropriate time).

X

X

 

 

X

X

 

 

Bonus payments or large cash sums used to supplement pay (unconsolidated bonuses counting towards pay).

X

X

 

 

X

X

 

 

Employers providing accommodation, food, transport, or other benefits in kind such as uniforms to low paid workers.

 

X

 

 

X

X

 

 

Trade where an intermediary such as a labour provider is involved in the engagement of the workers (particular concern around seasonal work, migrants and where there is a high turnover of staff).

X

X

 

 

X

X

 

 

A level of charges to hirers which suggest that the Agricultural and National Minimum Wage might not be paid and/or other statutory requirements are not being met.

X

 

 

X

X

X

 

 

Workplaces where workers are not given a written statement of employment particulars or a written contract.

 

 

 

X

X

X

 

 

Agencies providing other services (e.g. accommodation, transport etc) to the worker, for which the worker is being charged large sums.

X

 

 

X

X

 

 

 

Accommodation is provided by the employer and is grossly overcrowded, subject to change at short notice, or not subject to a formal tenancy agreement. 

 

 

 

 

X

 

 

 

Staff being allowed time off every two weeks (possibly to sign on).

 

 

 

 

 

 

X

 

Staff paid cash in hand at all times.

X

 

 

 

 

X

 

 

Staff work especially unusual or long hours.

X

 

X

 

 

X

 

 

Employer’s records
Issues of concern Key contacts for sharing information
UKBA HMRC & NMW HSE or LA EAS GLA AMW DWP UKHTC

Employer records are poor/ incomplete particularly if there are no records of hours worked, or general evidence of poor record keeping.

X

X

 

X

X

X

 

 

Incorrect or false national insurance numbers used for employment purposes.

X

X

 

 

 

 

 

 

Incorrect or false national insurance numbers, used in connection with claims to benefit.

X

 

 

 

 

 

X

 

Any evidence suggesting staff in receipt of benefits to which they are not entitled.

X

 

 

 

 

 

X

 

Absence of wage slips (or other evidence that employees are paid cash in hand at all times).

X

 

 

 

X

 

 

 

Original travel or identity documents being kept by employer.

X

 

 

 

X

 

 

 

Workplace conditions
Issues of concern Key contacts for sharing information
UKBA HMRC & NMW HSE or LA EAS GLA AMW DWP UKHTC

Poor management of vehicle movement, general absence of safety signage and markings (e.g. lack of signs or signs leading you from a car park to reception via 'Goods inwards', sightings of dangerously moving vehicles or people not wearing appropriate high-visibility clothing when 'in amongst' moving vehicles).

 

 

X

 

X

 

 

 

Welfare facilities either absent or poor, e.g. excessive heat/cold with no means of getting warm, toilets and washing facilities dirty etc.

 

 

X

 

X

 

 

 

Premises and equipment poorly maintained (e.g. trailing cables, open fire doors, rusty electrical equipment, leaking pipe work, significant damage to building fabric and absence of health and safety notices).

 

 

X

X

X

 

 

 

Failure to provide and maintain arrangements to ensure safe work where maintenance work is being carried out (e.g. work at height should include scaffold, edge protection (guardrails), safety nets or suitable work platforms.

 

 

X

 

X

 

 

 

Correspondence/business address differs from place of work (e.g. business or correspondence address is a PO Box number).

X

 

 

 

 

 

 

 

Workplace facilities not suitable for stated purpose (e.g. insufficient classroom or work space for number of registered students or employees).

X

 

 

 

 

 

 

 

Issues of concern Key contacts for sharing information
UKBA HMRC & NMW HSE or LA EAS GLA AMW DWP UKHTC
Workplace characteristics

Workforce predominantly comprising migrant workers (when combined with other factors listed in this table).

X

 

 

 

X

 

 

 

Employer’s reaction to visit

Employer nervous or reluctant to allow officials to approach or interview workers.

X

 

 

 

X

 

 

 

Employer refuses to provide documents relating to workers.

X

 

 

 

X

 

 

 

Previous non-compliance

Business/employer/place of work has previously failed to comply with workplace regulations.

 

X

 

 

X

 

 

 

Human Trafficking
Issues of concern Key contacts for sharing information
UKBA HMRC & NMW HSE or LA EAS GLA AMW DWP UKHTC

Threats or actual physical harm to workers.

 

 

 

 

X

 

 

X

Restriction of movement or confinement, to the workplace or to a limited area.

 

 

 

 

X

 

 

X

Debt bondage: where a worker works to pay off a debt or loan, and is not paid for his or her services.  The employer may provide food or accommodation at such inflated prices that the worker can not escape the debt.

 

 

 

 

X

 

 

X

Withholding wages or excessive wage reductions, that violate previously made agreements.

 

 

 

 

X

 

 

X

Threat of denunciation to the authorities where the worker is in an irregular immigration status. 

X

 

 

 

X

 

 

X

(This is not an exhaustive list of potential indicators of trafficking, more detailed information is available.)

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Footnotes

1. The United Kingdom Human Trafficking Centre, HM Revenue and Customs, National Minimum Wage and Agricultural Minimum Wage are participating in this Joint Working Protocol as potential recipients of intelligence only.

Updated 2013-09-16