Migrant Workers in Northampton: Employment and Contracts

1. East Midlands 5 Pack + 1MIGRATION Migrants Working in Northampton The Baptist Church, Melton Mowbray 12th May 2011 Julian Wilks Senior Environmental Health Officer Regulatory Services

2. Northampton- Background Borough Population>202,000 Northampton is in the Midlands, so centralised for the UK NBC has excellent access to all the major trunk road networks including M1, M6, M40, A14, A1 that services majority of UK Region attracts a hub of logistics/ distribution warehouses from leading retail and food businesses, Food Tesco, Sainsburys (Europe's greenest depot), Morrisons, Waitrose, Asda, Coca Cola etc Retail Panasonic, Travis Perkins, Black Decker, Blacks etc.

3. Northampton- Background • LA and HSE enforce H&S in approx. 6,100business premises • 4 major industrial parks in NBC • Approximately 364 warehouses(May 2011 figures) • IDCs, NDCs and RDCs with many ‘flag ship’ depots 76 employment agencies are based in Northampton that service surrounding businesses across EA boundaries; Actual contracted employee numbers - Unknown(thousands)

4. Brackmills Industrial Park

5. Who is a ‘migrant worker’ HSE definition of a ‘migrant worker’ “A migrant worker is considered to be someone who is or has been working in Great Britain (GB) in the last 12 months, and has come to GB from abroad to work within the last 5 years” www.hse.gov.uk/migrantworkers/

6. How are ‘migrant workers’ employed Directly (client/ employer) labour user -is a person who hires, or users employs migrant workers. Indirectly (agencies) labour provider – is a person, or company who supplies workers to a third party. This includes employment agencies, employment businesses and gangmasters i.e. staffline, templine, blue arrow (recruitment agencies) (approx. 76 in Northampton) Clients sign up agencies, either; locally - local office National - De Poel Managed Services (brokers)

7. Why do businesses employ ‘migrant workers’ • Improve the flexibility of workforce • Short term staff cover • Less regulation around agency staff • It is expensive to recruit directly • To meet seasonal, casual, temporary requirements • Agency paid less than perm staff • Generally happy to undertake hard, laborious,monotonous labour intensive work. • (Source, REC 2010)

8. Main contractsused for ‘migrant workers’ Contract of employment(also known as ‘contract of service’) Not defined in law, or case study. Determined by various tests, to decide whether a relationship exits. (HSE) Factors as whether a ‘contract of employment’ exists, can include; - written terms (if contract exists) - practical circumstances of the relationship. As the terms of the contract can be expressed (e.g. written or orally agreed) or implied (e.g. from actual practice). Other factors include Degree of control exercised over workers ‘master servant relationship’ Whether employer can suspend, dismiss Who pays the wages Who fixes times and dates and place of work Who supplies PPE.

9. Contractsused for ‘migrant workers’ Contract of employment(Con’t) Problems - Commonly, a written contract isNOTprovided for migrant workers, usually informed to be ‘self employed’ - As No contract is signed, migrant workers are free to register with multiple agencies, so finding multiple contract workplacements - AgenciesDO NOTmonitor individual hours worked by a migrant worker, who regularly works at other agencies, so working hours/ allowances are exceeded (back to back shifts) - Agenciescommonly do not accept any H/S responsibilities, making clients sign to accept full liability and responsibility, as stated in standardised condition para 8/9.

10. Contractsused for ‘migrant workers’ • Contract for services • Is a contract whereby a person is merely under an obligation to perform some work, or services for another person, without an employment relationship being created between the two.(HSE) • Problems • - Waters down any joint responsibilities and clarification, between the agency and client. • - EA legal services avoid taking legal action • Other types of contracts used; • Terms of engagement • Certificate of business(Sets the parameters of business arrangements)

11. Contractsused for ‘migrant workers’ Service level agreement Signed written agreement between ‘labour provider’ (agency) and ‘labour user’ (client). Details commitment and operational contractual arrangements Contains Health and Safety responsibilities of the agreement (clauses and conditions in detail in small print on the back). Problems - Commonly, these written agreements are signed at HO, by reps (contract managers), and remain at HO, so sitesDO NOTget informed of H/S responsibilities they have towards agency staff. - Agreements contain standardised literature, that is NOT made site specific. - Induction training is NOT usually carried out by provider, but, if it is, clients do not pay (Staffline) so training is inadequate.

12. NBC intervention visits • Priority topic programmes (workplace transport, MSDs) • visits highlighted significant shortcomings • F2508 (RIDDORS) frequently had ‘foreign nationals’ as IP • Accident investigations identified, foreign nationals as; • Significant contributors to accidents • Main causation of accidents • Fatality case involving Mr Lajos Nemeth (IP), July 08 • Multiple organisations obscure H/S arrangements & clarity • Casual work + temporary (migrant) worker = high risk

13. Approx 80% of notifiable are WT related

14. Cultural problem areas • FOURproblem areas have been identifiedas potential • problems that require addressing by employers; • confusion,orunfamiliarity(due to inexperience) • communication(lack of English) • competence (no previous H/S training overseas) • culture(s)in the workplace (lack of acc. reporting) • coupled,with ‘labour intensive jobs’, or ‘unsocial working hours’ • causes ‘high risk practices’ • Picking activities- ‘high labour required’ (pick rates/ per hr) • HGV drivers- night shift work

15. Specific problem areas • Migrant Workers may: • not understand training or instruction • misunderstand safety critical communications or be unable to use them to warn others • not be able to communicate effectively with supervisors • Eastern European supervisors do not report complaints to higher levels, ‘eastern European trait’ • Not understand each other • minimal training provided • no induction training • foreign FLT certificates, or inadequate example: NYK (Senior MHE instructor failed 8 out of 12)

16. Fatality case • Companies - host depot (*) • - logistics and transport contractor (**) • - employment agency supplies IP to ** • Scenario • IP arrives to work at 19:00 hrs • IP carries out a pre shift check on HGV (tractor coupled with • fully laden trailer) • IP disengages trailer parking brakes, tractor hand brake already • disengaged, vehicle starts ‘free rolling’, crushes IP • (staff member in canteen observes IP on yard (40 mins later)

17. Fatality case • Facts of case • IP (Romanian) had worked on site for 6 weeks prior to incident. • IP had received no proper familiarization, or induction training • from either his employment agency (service provider) or • transport undertaking (service user). • Service user had NOT carried out temporary worker RA • There was a RA and SSoW in place for ‘coupling activity’ • (main causation of accident) • NO communication, or evidence that IP, or ‘employment • agency’ had seen SSoW. • Trailer parking was uncontrolled and cramped. • Areas of concern • NO written ‘contract of employment’ in place, so legal services • would not proceed with prosecution • Multi causal organisational failures, contributed to fatality

18. Other examples Slovakian agency staff working without rest between day shifts, causing tiredness/ fatigue Two Slovakian staff were sent home at 14:00hrs, as LLOP drivers were seen driving erratic and unsafe. They started working on a night shift the day before (22:00hrs- 06:00hrs) Only 6 hrs rest between shifts, required time to leave work, sleep, eat and travel (30 mins between each Tesco depot)

19. A quick inspectors checklist Ensure clients test migrants for English to establish a minimal entry level. Ensure all responsibilities are clarified and agreed between ‘user’ and ‘provider’. i.e. whether employees need to be employed directly, or indirectly Ensurespecial skills, or qualifications have been identified. Ensure workers have received specific ‘information, instruction and training’ and received on site familiarisation training relevant to their tasks. EnsureRAs are completed by ‘user’ and ‘provider’ User ensure all tasks that workers are exposed too are assessed Provider to ensure client has conducted RAs, so ensuring workers are safeguarded, controls implemented, PPE provided. Ensuretasks (practices and SSoW/ SWP) are understood, Ensure ‘terms and conditions’ of employment, time keeping kept, recorded.

20. SUMMARY Many vulnerable workers suffer because they do not legally count as ‘employees’ with a contract of employment. Vulnerable workers (migrants) are still receiving increased injuries caused by accidents in the workplace Health and Safety arrangements and responsibilities need communicating effectively between ‘labour providers’ and ‘labour users’ to ensure there H/S is safeguarded. There are no controls, or provisions to monitor the number of hours worked by a migrant worker, between agencies, that causes fatigue and tiredness.

21. FUTURE (New Legislation SOON to come into force Oct 2011) The Agency Workers Regulations 2010 LAs need additional guidance, or clarity on tackling ‘who is the employer’ when multiple businesses involved. Employment Agencies should only send out workers when fully rested. Client businesses need to accept full responsibilities (+ costs) for providing full induction and familiarization training and provide training as given to permanent employees. NBC project leader for Northants county to tackle agencies, clients to ensure migrant workers H/S is safeguarded in the workplace. (possibly secure Migration Impacts Funding)

22. Work to date • SHAD in 2008 (later) • Programmed ‘local priority topic’ for 2011-12 • (draft inspection form – Focusing on clarification, arrangements and responsibilities, between provider and user, to safeguard the worker) • Further joint working with UK Border Agency • Working with local/ regional Union reps, stakeholders and the HSE outreach worker

23. Safety Health Awareness Day • November 2009 • NBC/ SNDC planned and executed SHAD • Invited ‘Labour Providers’ & ‘Labour Users’ • Tried to tackle; ‘who is the employer’

24. Aims To promote and clarify health and safety responsibilities to labour providers (employment agencies) and labour users (clients) that either employ, contract or service out migrant workers. To develop new partnerships with government agencies & bodies that aim to protect migrant workers. Then plan, organise and deliver a SHAD, as a joint partnership approach, to a delegation, to raise awareness, then assess the ‘needs of businesses’ and evaluate the SHAD

25. SHAD • - Multi-agency approach • - Interested parties; • Government Agencies (enforcers) • Government Advisors • Employment businesses (labour providers) • Clients (labour users) • Trade Association

26. SHAD Government Agencies UK Border Agency secures UK borders and controls migration into the UK Gang Masters Licensing Authority check & licence businesses that supply labour to specific industry Employment Agency Standards Inspectorate (BIS) - raise standards and regulate agencies that employ vulnerable migrant workers Health and Safety Executive– responsible to provide legislation, enforcement, and guidance on H/S at work.

27. SHAD Government Advisors Health and Safety Laboratory – to provide technical and expert support to HSE, LAs and private industry. Recruitment Employment Confederation, trade association Stakeholders The Shropshire Group (G’s)-agricultural rep UK largest independent grower, producer and provider of produce Panasonic UK- leading supplier of consumer and business related electronics products Staffline- a national H.R. & outsourcing agency

28. Goodand Bad Practice Good SHAD satisfies Hampton review, reduces administration On evaluating the SHAD, 85% delegates preferred SHAD, opposed to 5%, who preferred an inspection. Most delegates preferred SHAD opposed to visit (free food) Bad High % of agencies do NOT accept Health and Safety responsibilities, as only a small percentage came to SHAD

29. Thank you for listening Acknowledgements: John Bennett Anne Fairweather