Beyond Employment Tribunals: Enforcement of Employment Rights by EU-8 Migrant Workers

Beyond Employment Tribunals: Enforcement of Employment Rights by EU-8 Migrant Workers Abstract Many EU-8 migrant workers work in low-skilled, low-paid jobs, particularly in sectors such as food processing and agriculture. Our interest lies in the experience of those migrant workers in the UK and specifically what happens when they are denied their employment rights. In earlier work, we have already shown that there was a significant underuse by EU-8 migrant workers of Employment Tribunals (ETs). So the questions for this article are three-fold. First, why do so few EU-8 migrant workers enforce their employment rights before ETs and to what extent do legal, economic, political and cultural landscapes, as they are experienced by migrant workers, constrain or enable enforcement action? Second, if migrant workers do not resort to ETs, what do they do? Do they simply move on, or do they use alternative enforcement mechanisms (such as the Gangmasters’ Licensing Authority)? How effective are these other enforcement processes and institutions in protecting the rights of migrant and similarly vulnerable domestic workers? And third, what might be done to improve the enforcement of employment rights for EU-8 migrant workers and for other vulnerable workers on the UK labour market, including non-EU migrants, especially in the light of the new labour market enforcement agency (LMEA)? We argue that the establishment of a Pay and Work Rights Ombudsman might help address some of the problems experienced by EU-8 migrant workers and other vulnerable national workers. 1. INTRODUCTION As the Brexit vote has shown, European migration is a highly politicised issue. Government policy, too, is confused and inconsistent. In its 2015 manifesto, the Conservative Party pledged to ensure that EU migrants wanting to claim tax credits and child benefit had to live in and contribute to the UK for a minimum of four years. This, the manifesto said, would reduce ‘the financial incentive for lower-paid, lower-skilled workers to come to Britain’.1 Yet, at the same time, the Party promised to ‘take further steps to eradicate abuses of workers, such as non-payment of the minimum wage, exclusivity in zero-hours contracts and exploitation of migrant workers’.2 While the first Conservative Party policy risks exacerbating vulnerabilities, by forcing migrants to do low-paid jobs without the support provided to similarly situated UK nationals, the second seeks to prevent abuse through protective regulation and by enabling migrants to enforce their rights. This divergent discourse is mirrored in popular press coverage of migration. On the one hand, the press has expounded the need to protect British jobs and social security entitlements for British workers. On the other hand, (certain parts of) the media call for migrant workers to be protected against exploitation. This is linked to arguments about social justice, as well as preventing undercutting national workers’ terms and conditions of employment. The Modern Slavery agenda, and the relevant Act of 2015, have shone a spotlight upon some of the most egregious treatment of workers. Our focus here is upon lower level, but nevertheless, poor treatment by employers of their migrant workforce. Central to debates about the treatment and rights of migrant workers are the implications of Article 45 of the Treaty on the Functioning of the European Union (TFEU). Article 45 TFEU entitles all EU nationals to look for employment in other EU Member States and grants migrant workers rights to equal treatment as to terms and conditions of employment as well as any social or tax advantages offered to domestic workers. Since accession of the so-called EU-8 states in 2004 (countries such as Poland and the Czech Republic), over two million EU-8 migrant workers have exercised their free movement rights under Article 45 TFEU and have arrived to work in the UK. The accession of Bulgaria and Romania (the EU-2 states) in 2007, led to a significant increase in immigration to the UK from these countries.3 EU-2 citizens now account for 22% of total EU immigration into the UK as compared with 29% from EU-8 countries. The global financial crisis, and the resulting high youth unemployment, especially in southern European States, has also led to an increase in migration to the UK from the ‘old’ EU-15 states.4 Much of the empirical evidence shows that EU nationals who come to the UK do so for work5 and that EU migrants are net contributors to the economy.6 However, significant empirical evidence shows that EU-8 migrant workers tend to be concentrated in low-skilled sectors for which they receive low pay, often through agencies or via gangmasters. We know, for example, that EU-8 migrants work particularly in agriculture, food processing and packaging, hospitality and construction7 and jobs in these sectors are commonly located in places where, until recently, there has been little history or experience of mass immigration.8 Work in these sectors is often low skilled: research from 2008 research showed that half of EU-8 migrants with jobs worked in unskilled occupations, compared to 20% of other immigrants and 18% native workers.9 Inevitably, given the unskilled occupations they occupy, the work of EU-8 migrant workers tends to be low paid.10 A study of earnings in 2007 showed that 89% of EU-8 and EU-2 workers earned less than £400 per week compared to 57% of UK-born workers11 and a 2009 study showed that recent EU-8 migrants earn around 27% less than the native group.12 A study in 2008 found that 25% of agency workers in the UK were migrant workers, although this figure was not broken down into EU-8 workers and other migrant workers.13 A 2004 study for DEFRA found that 90% of agency workers employed in second stage food processing were migrant workers, of which 64% were from accession states.14 Geddes showed that only 9% of 1,067 gangmasters registered with the GLA employed only British workers, whereas 23% employed only migrant workers. He found that 82% of gangmasters employ some Polish workers and 45% of gangmasters employ some Lithuanian workers. Thus, the literature reveals that the tendency for EU-8 migrants in general is to experience downward occupational mobility in the UK with the archetypal migrant as someone who is young and university educated, but who has been working in jobs categorised as low skilled, low status and low paid.15 In the context of research into migration in the North East of England, Stenning and Dawley have explained the reason for this combination of circumstances as the ‘ “work first” motivation of migrants’. They argue that because many migrants are looking for an immediate income, and thus for the first work available, they do not wait for work which is better paid or in a sector that matches their qualifications.16 The predominance of EU-8 migrant workers in low-paid, low-skilled jobs has implications for working conditions. While some have positive experiences of working in the UK, and are treated fairly, the experiences of others is less good, especially in sectors, such as food processing and packing, where research has found that migrant workers are frequently denied their employment rights.17 In her studies of Southport in 2007 and 2009, Forsberg noted that ‘most of the A8 nationals [she] interviewed in 2007 reported problems including low pay, freezing work rooms, insecurity, tied accommodation and long travel distances to work’.18 Other studies have found that EU-8 migrant workers’ experiences have been characterised by poor working conditions,19 including working longer basic hours and longer total hours than average for their occupation with few workers receiving paid holidays.20 Our work seeks to understand what happens when the employment rights of migrant workers are not respected in the UK.21 We have concentrated on EU-8 workers because this group has attracted some of the strongest anti-European migrant narratives. Our research was undertaken prior to, but in expectation of, the EU referendum. The level of EU migration into the UK was one of the main reasons why many voters supported the Leave campaign,22 especially in those areas that have witnessed a rapid increase in migration in recent years.23 The fate of those EU workers—and their successors—will be the subject of negotiations between the EU and UK in the years to come and will be of continued relevance to any future deal between the EU and UK. In this article, we focus on what has happened to those EU-migrant workers whose employment rights have been denied and what can be done to improve the levels of protection. Section 2 considers the extent to which those with an employment problem resort to the traditional legal mechanism of going to an Employment Tribunal (ET). The answer is very few, and among those who do, UK-born workers were more likely to report specific work-related problems and were twice as likely to take some form of action compared to non-UK born respondents. So the question for section 4, is why do so few EU-8 migrant workers enforce their employment rights before ETs? If migrant workers do not resort to ETs, what do they do? Do they simply move on, or do they use alternative enforcement mechanisms (such as the Gangmasters’ Licensing Authority)? In section 5, we consider the effectiveness of alternative enforcement processes and institutions in protecting the rights of migrant and similarly vulnerable domestic workers. Section 6 considers considering what might be done to improve the enforcement of employment rights for EU-8 migrant workers and for other vulnerable workers on the UK labour market, especially in the light of the introduction of the new labour market enforcement agency (LMEA). 2. JUDICIAL ENFORCEMENT MECHANISMS The expected response to rights being denied, from a legal perspective, is that workers bring claims before ETs. Indeed, in 2009, Currie suggested that on expiry of the transitional arrangements for migrant workers, ‘an enhanced legal status can undoubtedly contribute to a more secure and protected migration experience, particularly for those with a certain degree of rights awareness who are able to directly seek to enforce their rights in the event of default (by an employer for example). Furthermore, the potential of law to elicit more profound change […] by impacting on perceptions of EU-8 and EU-2 nationals should not be underestimated’.24 ‘Legal Needs’ surveys have explored the people’s responses to ‘justiciable problems’ in a number of different ways over the last few decades.25 However, none of them break the statistics down in terms of national or ethnic origin, only providing data on race in the context of colour. Nevertheless, they are informative and enable us to draw some tentative comparisons between domestic workers’ responses to employment problems, and the responses of EU-8 migrant workers. The data show that between one third26 and 40%27 of survey respondents reported one or more justiciable problem. The percentage breakdown of these problems as employment problems has varied considerably: 6% of reported problems were employment problems in the 1996 survey28, whereas 29% were employment problems in a 2009 study29, and 12.2% were noted in the 2014 study.30 For our purposes, of particular relevance are studies showing that around 10% of people who experience any type of justiciable problem do nothing about it—here we are not simply referring to litigation, but rather situations where people do nothing at all, including not seeking informal resolution or obtaining advice.31 When the figures are broken down to focus only on individuals with employment problems, 16% of people in the 1999 survey did nothing about their problem. In 2009, the equivalent figure was 9.4%.32 When low-paid, non-unionised workers were considered as a group in the Unrepresented Worker Survey (URWS), it was found that 14% of those with a problem at work did nothing about it.33 Those who had been in their jobs for less than a year and in semi-skilled manual occupations were least likely to do anything. Individuals’ income was found to make little difference to their response to a justiciable problem at work, except in cases of those earning above £50,000 per annum, which increased the likelihood that action would be taken.34 A 2014 study found that 6.4% of people with a justiciable problem had it resolved through a court, tribunal or formal appeals service.35 In the URWS, which focused solely on problems at work, 2.8% of workers went to an ET to solve their employment problem.36 What these data make clear is that despite many people experiencing justiciable problems at work, very few people take action in the ET to solve their problem. Some data suggest that people in low-paid and non-unionised employment are even more likely to do nothing in the face of a justiciable problem at work. And of even more direct application to our work is Fevre’s finding, based upon 2008 survey data, that UK-born workers were more likely to report specific problems in relation to work and were twice as likely to take some form of action compared to non-UK born respondents.37 It is this sharp distinction between the actions of UK-born workers and non–UK-born workers that is of particular interest to us. In a study published earlier this year, we examined how EU-8 migrant workers use ETs to enforce their rights.38 Like Fevre, we found significantly fewer claims by EU-8 migrants being disposed of by ETs than expected relative to the size of the EU-8 working population in the UK. At most, we found that Tribunals disposed of 1,548 claims brought by EU-8 migrant workers over three calendar years (2010–12 inclusive) out of an annual case disposal total of over 100,000. We would have expected closer to 12,000 case disposals if employment rights had been enforced by EU-8 migrant workers at levels proportionate to official population size. For those who made it to Tribunals, we found that they were just as likely to succeed in their claim, at least in part, as they were to fail altogether. There were, however, significant obstacles to bringing a claim in the first place, with the likely consequence that the employment rights of many EU-8 workers were not protected. This is consistent with the work of Holgate, Massey and others, which has highlighted the role of ethnicity and nationality in shaping divisions of labour and the (in)ability of workers to draw upon social networks and legal systems to enforce their rights.39 It also mirrors findings from research in the fields of discrimination and equality, which have focused on the challenges faced by litigants bringing claims, whatever their nationality.40 So the question, then, is why do so few EU-8 migrant workers enforce their employment rights before ETs? To what extent do legal, economic, political and cultural landscapes, as they are experienced by migrant workers, constrain or enable enforcement action? This is considered in section 4. If migrant workers do not resort to ETs, what do they do? Do they simply move on, or do they use alternative enforcement mechanisms (such as the Gangmasters’ Licensing Authority)? If so, how effective are these non-judicial processes and institutions in protecting the rights of migrant and similarly vulnerable domestic workers? This is considered in section 5. However, we begin with a brief description of the methodology we used to explore these questions. 3. METHODOLOGY Two key sources of data inform the analysis that follows: interview data (with professional interviewees and EU-8 migrant workers) and publicly available data about the operation of enforcement agencies beyond ETs. Where necessary, some public data have been obtained through requests under the Freedom of Information Act. We conducted a total of 25 formal interviews with staff working for relevant advice centres, Government agencies or other bodies working with EU-8 migrant workers. We interviewed a trade union representative whose branch was predominantly made up of EU-8 migrant workers. We also made contact with a professional association for gangmasters and discussed their work, and interviewed a labour provider and a business that engaged substantial numbers of EU-8 workers. Thereafter we sought to contact EU-8 migrant workers directly. This proved difficult. It became apparent, and in two cases we were told explicitly, that EU-8 workers were not willing to speak with us. It was explained that workers were not keen to talk to those outside of their own community and/or many were working such long hours that they did not have the time to speak to us. With persistence and some creativity in reaching out to local community groups, particularly through priests working within Polish and Lithuanian dioceses,41 we were able to interview 20 EU-8 workers individually. We also held five focus groups. Most of our worker participants were Polish, Lithuanian or Latvian nationals. They had diverse occupational backgrounds, ranging from agricultural, retail and administrative work, to dentistry and computer science. Most had been resident in the UK for over two years; some had been working in the UK since accession of their home countries to the EU in 2004. Participants were identified opportunistically and interviewed often within considerable time and other constraints. Where possible, interviews were recorded. In some cases, a translator was used to overcome communication barriers. Questions focused on four key issues: experiences of work (the legal and relational nature of the employment relationship, including any experiences of unfair treatment), responses to unfair treatment (including knowledge and use of enforcement bodies other than ETs), rationales for responses to unfair treatment and barriers to enforcement. We were interested, throughout, in the extent to which interviewees felt that workplace experiences and responses to mistreatment were particular to (EU-8) migrant worker status as compared with domestic workers. Interviews were semi-structured to provide opportunity for participants to steer the conversation as appeared relevant to their individual circumstances and experiences. In parallel with these interviews, we sought to establish what other enforcement agencies (including HM Revenue and Customs [HMRC], the Health and Safety Executive [HSE] and the Gangmasters Licensing Authority) were doing on the ground. We analysed publicly available documents about enforcement strategies and statistics; we considered recent consultation documents about reform and undertook interviews with a member of the Gangmasters’ Licensing Association (GLA) and statisticians from the Advisory, Conciliation and Arbitration Service (ACAS). ACAS provided data about the use of their workers’ helpline before and after incorporation of the Pay and Work Rights Helpline into ACAS as well as data about the use of, and experiences during, Early Conciliation. 4. WHY DO SO FEW EU-8 MIGRANT WORKERS USE ETS? In this section we present findings from our interviews as to why so few EU-8 migrant workers enforce their rights before ETs. Our data show some barriers that are common to, and well-known in the literature as applying to all workers who are in precarious or vulnerable work (sub section B). However we start with two distinctive aspects of our data that we would suggest are significant drivers in shaping how EU-8 workers respond to problems at work (sub section A). A. Distinctive Interests, Understandings and Experiences Our data suggest that EU-8 migrant workers’ general experiences of mistreatment, and their responses to it, were shaped by two key factors: first, their particular plans and motivations for working in the UK, and second, the occupational customs and practices of their home Member State. (i) Periods of Residence in the UK (a) Introduction Interviewees were quick to draw distinctions about patterns of enforcement based upon how long migrant workers intended to stay in the UK and their consequent priorities and degree of social and psychological integration. Interviewees broadly distinguished between three different approaches to migration: those who had come to the UK and planned to settle here permanently; those who planned to work in the UK for 2–5 years before returning home; and those who worked only for a very short period, for example for the cauliflower- or daffodil-picking season. There are parallels between this three-fold distinction drawn by our participants and Eade’s typology of migrant Polish workers, based upon differences in their approaches to migration:42 ‘Storks’ (circular migrants), ‘Hamsters’ (tending to treat their migration as only a capital raising activity), ‘Searchers’ (keeping their options open) and ‘Stayers’ (those who intend to remain in the UK for good).43 In the sections that follow, we elaborate upon the distinctions that were drawn across these three groups in terms of experiences of, and responses to, mistreatment at work. (b) Those wishing to settle permanently in the UK Those in this first group of EU nationals who wished to settle permanently in the UK were said to be most likely to take action about mistreatment at work; those in the third group were considered least likely. This is consistent with Piore’s work that describes a shift in migrants’ views and practices of work from purely instrumental, hyper-mobile and socially detached to more permanent and embedded, by which time ‘instability of employment is no longer a matter of indifference’.44 Polish nationals were said to be the most common constituent of this first group. This is consistent with our previous quantitative analysis of ET decisions. In the 148 cases from our dataset where there was an express reference in the Tribunal decision to the claimant having EU-8 nationality, 127 of those cases (or 85.8%) were brought by Polish claimants. The same picture is reflected in data about use of the ACAS helpline: in 2015, 47.4% of calls made to language line were for Polish; the second most requested language was Spanish, accounting for only 6.77% of calls. In some ways, it is not surprising that Polish nationals make greatest use of ETs: Poles are the largest group of EU-8 migrants in the UK. However, when interviewees were asked why they considered Poles to be the most proactive EU-8 migrant group in challenging mistreatment, a more complex picture emerged than simply population size. Interviewees observed that Polish workers generally had been working in the UK for a longer time and tended to be part of a more settled community compared to nationals from other EU-8 countries. Their length of residence had seen them assume more responsible roles in the workplace. This responsibility was described as giving Polish workers greater stability and confidence in their prospects and value. Interviewees told us that this increased their social capital and, from this, stronger communities and organisations of support had grown. These community organisations had raised legal consciousness and equipped workers with practical support and knowledge about how to navigate the employment enforcement system. However, even among this group, the attitude to enforcement of employment rights was not consistent: some questioned whether enforcement was necessary, or even desirable. There was a strong emphasis in the data upon workers resolving situations for themselves such that for many interviewees, moving jobs was seen as the obvious and natural response to workplace difficulties. In addition, many migrant workers described their communities as distinct and isolated from non-migrant communities: many preferred to create alternative social networks within their own national group rather than making use of existing networks of support (such as Citizens Advice Bureaux [CABx]). Some migrant workers were reluctant to share and seek advice about their workplace problems with others, even from their own national community. Problems were often internalized and individualized. This was explained mostly as a desire to be seen to be coping and not wanting people within their own community ‘knowing my business’.45 We found little evidence of cooperation or solidarity between different national groups; with some significant exceptions, there was a great deal of silo working by single national groups (i.e. Polish support groups catering only for Poles and seeing issues as Polish specific rather than common to EU-8 migrants as a whole). (c) Those wishing to live in the UK for 2–5 years Interviewees described the second group of EU-8 workers as those who intended to work in the UK for 2–5 years before returning to their home Member State. They were distinguished on the basis of common specific motivations for working in the UK, namely earning the maximum amount of money in the shortest period possible, often to save to buy a house or business at home or to send home to support family.46 Interviewees told us that this influenced EU-8 workers’ approaches to problems in two ways. First, it meant that many workers were unwilling to take advantage of some rights, less still enforce those rights, because to do so would conflict with their objective to maximise income. The enforcement of working time rights is a particularly good example of a right that was thought to conflict with personal ambitions: EU-8 migrant workers in this group wanted to work hours that considerably exceeded the maximum working week prescribed by the Working Time Regulations 1998 because this enabled them to earn more pay. Secondly, short-term income maximization objectives meant that this group of workers did not want to ‘waste time’ taking a dispute. In the face of mistreatment, their preferred response was to move to another job in order to keep earning as much as possible. Forsberg noted a similar phenomenon in her study of migration in Southport in the North West of England, finding that for most of her interviewees, life was organised around work and that ‘the ‘upward’ labour market mobility of A8 nationals happened, then, at a very low level, not with the primary aim to get out of low waged work but rather to avoid abusive working conditions set by agencies and employers’.47 It was generally thought to be quite easy for migrant workers to find alternative work, especially in areas such as Lincolnshire where demand for (low skilled) migrant labour is high. However, finding high-quality alternative work could be difficult, especially work that required recognition of a professional qualification obtained outside the UK. Many of the migrant workers we interviewed were working in jobs for which they were over-qualified.48 While we found quite a lot of evidence of people changing jobs in the face of mistreatment, this makes our data somewhat out of line with other datasets. For example, Fevre found that 73% of those surveyed who had experienced problems at work had stayed with the same employer, whereas only 24% had left as a direct result of the most serious problem that they had reported.49 In the URWS, the figure was 58% who had stayed in the ‘problem’ job.50 This contrasts significantly with the consistent explanation by EU-8 migrant workers and advisers dealing with this group of workers as to how they tended to deal with problems at work. (d) Short-term workers The third group of EU-8 workers as identified by our participants worked only for a very short period in the UK and took a similar, but more extreme, approach to mistreatment and enforcement as the second group. As they were in the UK for so little time, they wanted to maximise their income to an even greater degree. This group included highly skilled and professionally qualified workers, or people who were working towards qualifications. Interviewees told us that many people in this group were capable of understanding their rights, but the pressure of earning money meant that they did not want to raise issues. Given the short-term nature of work it was also possible that any dispute would not be resolved until after they had returned to their home Member State, which made raising it feel pointless. (ii) Cultural Expectations and Previous Experiences of Work In addition to migrants’ motivations for coming to the UK and expected length of stay, our data indicated that the occupational customs and practices of home Member States influenced migrant workers’ general approaches to mistreatment and enforcement. Many interviewees talked about how the former Soviet Union had formed their ideas about work and shaped their experiences of work. As one Polish interviewee, Raj, put it ‘It feels like Poland has not mentally recovered from communism yet.’ Work was described as a duty such that the threshold for complaint was higher. Interviewees also took the model of workers’ rights from their home country (a weaker sense of individual rights and freedoms within the workplace) and extended it to their experience in the UK. In the face of mistreatment, some workers talked about their reluctance to engage with State bodies to explore and enforce their rights. They linked this to previous negative experiences of engaging with ‘authority’ in, say, Poland or Latvia and the continued legacy of communism. There was some evidence that EU-8 migrant workers had different views to British workers about the sorts of workplace dispute that required external intervention for resolution. The suggestion was that EU-8 migrant workers more often resolved matters themselves through informal means in which the employer was not involved. This way of ‘doing business’ was described as imported from migrant workers’ home States. One employer in the food packing sector, for example, described how every year or two, its workforce, which consisted almost entirely of Lithuanian nationals, became disgruntled with their supervisor. Allegations were made, often anonymously, and difficulties created in order to remove the individual. This interviewee drew a contrast between the ‘coup’-like nature of this response and a process-oriented approach, where issues are raised and pursued through the company grievance procedure. The employer suggested that British workers were much more likely to pursue a process-oriented approach. The ‘coup’ response was linked particularly to cases of conflict between and within the EU-8 community, for example, between two Polish workers or between a Polish supervisor and a Lithuanian worker. B. Practical and Legal Obstacles to Bringing Claims to ETs We turn now to the practical and legal impediments to bringing claims before ETs. Four key impediments emerged from our interview data: (1) precarious employment relationships; (2) lack of knowledge or misunderstanding about what Tribunals are for; (3) inadequate opportunities for specialist, free advice in the migrant worker’s native language and (4) feeling that it would be impossible to succeed before a highly complex Tribunal system. (i) Precarious Employment The primary impediment to Tribunal enforcement was a precarious employment relationship that generated opportunities for exploitation. Of course, precarity is not restricted to low-paid migrants and, as we have noted above, precarity also impacts upon the enforcement of rights by low-paid non-migrants. However, in the interviews, as well as the data described in section B above, it became apparent that a greater proportion of migrant workers are ‘particularly susceptible’ to this precarity.51 Employment for migrant workers through agencies, and on casual or temporary bases was typical. Zero-hours contracts were common. Although it is an increasingly well-recognised phenomenon that employers use ‘self-employment’ as a vehicle to avoid employment rights,52 we did not find as much evidence of self-employment, whether actual or false, as we had expected. Nevertheless, the nature of employment relationships that were in play led EU-8 migrant workers to believe that they could not present a claim to an ET because they did not have the necessary employment status or continuity of service. In some cases, this belief accurately reflected the law, such as where a worker had not been employed for more than two years for the purpose of enforcing unfair dismissal rights. However, more often, the situation was not so straightforward and it seemed possible to make the case that the individual had the necessary employment status for the purpose of enforcing some rights. The complex law on employment status and the different types of status required to enforce different types of right, were not easily understood by EU-8 migrant workers or some of their advisors. Entwined with barriers created by legally uncertain employment status were fears about the consequences of raising a dispute. There were particular concerns about the possibility of reprisal by way of being ‘blacklisted’ or being required to undertake less attractive work. Sumption and Somerville noted similar concerns in 2010, that workers were not prepared to raise complaints because they feared that they would lose their jobs.53 Companies using their own agencies to employ staff exacerbated workers’ feelings of vulnerability: the lack of division between end-user and agency-made workers more fearful of raising complaints. Workers said that only the ‘very brave’ dared to complain, let alone complain to an ET. In Peterborough, EU-8 workers told us about practices whereby firms routinely cease to offer work through agencies, even to good workers, once they had been working for six months. The purpose of this was said to be to evade any possible implication of worker status with the user firm. If it was possible for good workers to be treated in this way, workers were even more anxious about what would happen if they raised a dispute. Other features that were highlighted as particular to EU-8 employment relationships, and that were said to exacerbate the precarity of EU-8 workers’ circumstances, included living in accommodation that was tied to the employer, not being able to speak English, and working long or anti-social working hours. We found several examples of tied accommodation in the agricultural sector in Lincolnshire. In one case, agricultural workers all lived on site in mobile homes that were provided by the employer. They were only permitted access to the local town through mini buses that also were employer owned. Few could speak English and workers had little incentive or opportunity to learn English because almost all of their co-workers were EU-8 workers, they could not afford the cost of classes, or they could not get to class because transport was only provided through their employer.54 In other cases, interviewees told us that they could not attend English classes because work was offered and required at short notice (they were employed on zero-hours contracts). Without being able to speak English, workers considered that it would be impossible to enforce their rights. More broadly, working long or anti-social working hours for low pay meant that some EU-8 workers felt that they did not have, or could not afford, time to enforce their rights.55 (ii) Lack of Knowledge About Tribunals The second key impediment to enforcement through ETs was a lack of knowledge or misunderstanding about the role of Tribunals and how they are accessed. Many workers believed they had to pay to speak to anyone about enforcing their rights. This included the police and, where workers knew of its existence, the Gangmasters’ Licensing Authority. Workers similarly expected that they would have to pay to receive any form of advice. Awareness about sources of free advice, such as through CABx and Law Centres, was low. Reliance upon friends and colleagues for advice was high.56 In common with Wright and Pollert’s research, we also found that EU-8 workers had a high threshold for registering their workplace experiences as ‘problems’.57 There was a view among workers and some advisors that it would only be appropriate to take a case to a Tribunal if the mistreatment was ‘really serious’. For example, one advisor we met was emphatic that Tribunals were not for small sums of money like £200; rather they were only for ‘extreme cases’. These misunderstandings about the role of Tribunals ran alongside the cultural issues discussed above, with many EU-8 workers being concerned about engaging with Tribunals as a body of State power. They expressed a broad distrust of authority and an expectation of undefined difficulties if they went to a Tribunal, including unwanted scrutiny of their right to reside and work in the UK. (iii) Language Issues Lack of knowledge or misunderstanding about enforcement was closely tied to the third impediment, namely weaknesses in the provision of free legal advice in workers’ native languages. The Trades Union Congress (TUC) Commission on Vulnerable Employment made similar findings: that migrant workers had particularly low awareness of their employment rights, and this was exacerbated by limited understanding of English.58 We identified some community organisations that provide employment advice for EU-8 nationals in their own language. SOS Polonia, an advice and support organisation based in Southampton, is a good example of this. However, shortcomings as to language support or employment law expertise, or both, were common.59 Cuts to Local Authority funding has exacerbated difficulties of accessing high-quality advice in workers’ native languages.60 EU-8 workers’ preferences to access advice through organisations from within their own community rather than organisations such as CABx were explained partly in terms of language. Language line, the telephone translation service used by CABx, was considered to be a poor substitute for face-to-face advice. Though some trade unions have produced simple information about employment rights in EU-8 languages,61 interviewees emphasized that this did not obviate the need for individual advice. Simple messages, such as the graphical cartoon format used by the Hotelworkers branch of Unite,62 raised legal consciousness but needed elaboration and application to an individual’s case. There is negligible translated information about enforcement processes. We found no information in languages other than English in ET waiting areas. None of our EU-8 worker interviewees were aware that interpreters can be provided free of charge to them in Tribunals. (iv) Perception of Low Chance of Success The final impediment to Tribunal enforcement was a perception among EU-8 migrant workers that there was little point raising a claim before a Tribunal because they would not win.63 For some, this was because they believed that Tribunals, as State bodies, would be biased in favour of employers. For others, the complexity of the legal system made them feel like outsiders and therefore unlikely to succeed in their claims.64 Interviewees felt that legal and systemic complexity could be exploited readily by employers in ways that made attempts to enforce their rights futile. Several interviewees gave accounts of employers ‘disappearing’ when other workers had pursued them for money that was owed. These employers reappeared, phoenix-like, under a different name and carried on with the work they were doing before. Experiences like these led workers to believe that employers would inevitably find a way to ‘win’. Other studies have found high levels of dissatisfaction among workers who took formal action in response to workplace problems.65 This impediment was very much subsidiary amongst the issues that arose form our interviews. By contrast, it was the primary driver in Genn’s study as to why people did nothing about employment problems: 16% of people who had done nothing about an employment problem (that is, not even sought advice, let alone gone to a tribunal) cited this as the reason.66 By contrast in our interviews, this was by no means the primary concern that arose and, as our earlier research has shown, it is not supported by the evidence: EU-8 migrants who did go to a tribunal had broadly the same success rate as national workers. 5. ENFORCEMENT BEYOND ETS A. Introduction What emerges from the data presented above is a community of workers who fit squarely within the Department for Trade and Industry’s 2006 definition of ‘vulnerable’: many are at high risk of being denied their employment rights and many do not have the capacity or means to protect themselves from that abuse.67 In this context of vulnerability, our data suggest that ETs are insufficiently accessible enforcement forums for EU-8 migrant workers. Though we found that Tribunals took a generous and inclusive approach to EU-8 claimants, many of whom did not have legal representation and could speak little English,68 these positive experiences of enforcement are too few in number because so few EU-8 migrant workers feel able, practically or legally, to present claims. There are also significant shortcomings, which we, and others, have highlighted,69 in the enforcement of ET awards such that successful claimants may not recover that to which they are entitled. Positive experiences in Tribunals do not count for much if workers are not receiving what they are owed. Although some practical steps could be taken to increase the accessibility and effectiveness of ETs for EU-8 workers, our data point to the importance of less individualized enforcement mechanisms to ensure the robust protection of migrant workers’ rights in practice. With this in mind, this section examines the role played by the main enforcement bodies beneath the enforcement ‘peak’ of ETs. We focus on the enforcement powers, strategies and practices of the Gangmasters Licensing Authority (GLA) (now restructured and renamed Gangmasters and Labour Abuse Authority), HMRC in relation to minimum wage, the HSE in relation to working time and the Employment Agencies Standards Inspectorate (EASI). Our central contention is that there is a significant enforcement gap, which particularly affects vulnerable workers, and many migrant workers as a sub-category of that ‘vulnerable’ group. Enforcement agencies are not resourced or operated in ways that do enough proactively and systemically to protect the rights of vulnerable workers against ‘everyday’ mistreatment as distinct from some of the most egregious behaviours that are covered by the Modern Slavery Act 2015. We argue that a focus on criminalisation within the policy response to worker exploitation is welcome, but is no substitute for private law rights for workers within an enforcement system that is widely understood, widely accessible and adequately resourced. We begin this section with an overview of the powers, sanctions and budgets of enforcement bodies in the employment field outside of ETs. B. Overview of Powers, Sanctions and Budgets HMRC, the HSE and the EASI operate in a broadly similar way. Relevant officers are given powers to investigate breaches of employment law provisions falling within their remit.70 Each agency will only enforce certain rights. The rationale by which enforcement agencies determine which rights are included or excluded from enforcement is not clear.71 If a breach is found, compliance is usually sought informally,72 failing which civil sanctions may apply. In relation to HMRC, financial penalties can be sought up to 200% of the total underpayment.73 Where the running of an Employment Agency is considered by EASI to be unsuitable, a prohibition order may be sought.74 Alternatively, criminal sanctions may apply, for example, for refusing or wilfully neglecting to pay the National Minimum Wage (NMW),75 failing to comply with a working time requirement,76 and demanding or receiving a fee for finding a person work.77 The GLA operates in a fundamentally different way to the other three bodies. Gangmasters must be licensed and it is an offence to operate as a gangmaster without such a licence.78 The GLA licenses and enforces the requirements of the Gangmasters (Licensing) Act 2004. It inspects all new businesses and undertakes random inspection checks.79 GLA officers are given powers to enable their investigation.80 Businesses are inspected against a scoring system: failure to meet a non-critical standard results in eight points and failure to meet a critical standard results in 30 points. Licences are usually revoked where the overall score exceeds 30 points, meaning that a single critical standard failure may be fatal. Critical standards include failure to pay the NMW, the withholding of wages, and restricting workers’ movements. Requirements to respect workers’ rights to rest periods, maximum working week hours and annual leave within the Working Time Regulations are non-critical standards, as are the right to belong to a trade union and the requirement not to discriminate. The Gangmasters’ Licensing Authority Appeal Tribunal hears appeals against the refusal or revocation of a licence, the attachment of a condition or the refusal to transfer a licence.81 Funding for the HSE, GLA and EASI has progressively reduced over recent years. In 2011/12, the HSE’s Grant-in-Aid from the Government stood at £228.1m. By 2015/16, its budget had almost halved to £145.9m.82 The GLA’s Grant-in-Aid reduced from over £1.6m in 2011/12 to £1.4m in 2013/14, though it had further income for enforcement activity via the Home Office.83 Nevertheless, there was a consequential reduction in staff from 100 in to 68 over the same period.84 EASI’s resourcing is opaque. In answer to Parliamentary questions, EASI said that in 2012/13 its budget was £526,068, with 16 ‘inspectors’ in post, while in 2013/14 it was £532,032 with 12 ‘staff’ employed.85 For 2015/16, its budget was £0.5m.86 However by 2015, EASI said that its budget had doubled in 2014/15 and had been increased again in 2015/16 with a consequential increase in staff to nine inspectors.87 The position is different in respect of the HMRC. NMW enforcement resourcing through HMRC has steadily increased from £5.3m in 2005/6 to £9.2m in 2014/15.88 On 1 September 2015, it was announced that HMRC’s budget would increase further by £4.2m in 2016/17, taking its enforcement budget to £13.2m.89 C. Enforcement Policies and Practices Each of the four enforcement agencies under consideration has taken a different approach to enforcement, both as a matter of policy and practice. The enforcement action of some of these agencies is limited. There appears to be little joined up working between the agencies or with Tribunals. The Department for Business, Energy and Industrial Strategy (BEIS) policy on enforcement of the NMW by HMRC emphasises recovery of what is owed to individual workers. The policy states: ‘where a compliance officer discovers that the NMW has not been paid to a worker or group of workers, his aim is to ensure that workers receive what they are entitled to as soon as practicable’.90 The purpose of criminal offences is described as ensuring that payment of the NMW is taken seriously.91 Criminal prosecution is used in a selective and exemplary manner to ‘encourage and improve voluntary compliance’.92 Since October 2013, HMRC has operated a ‘naming and shaming’ scheme, publicly highlighting employers who have failed to pay their workers the NWM. Four hundred and ninety employers have been named so far.93 It is unclear whether naming and shaming has led to more employees recovering what they are owed. An emphasis in HMRC enforcement policy on recovering arrears more than criminal prosecution is reflected in the sums recovered from employers. In 2012–13, HMRC identified 736 employers who had failed to pay the NMW leading to the recovery of £3.9 million in unpaid wages for over 26,500 workers.94 In 2013-14, 1,455 investigations were undertaken and 652 financial penalties issued. This secured over £4.6m in wage arrears for over 22,000 workers.95 There were only two prosecutions for non-payment of the NMW between May 2010 and November 2014.96 In September 2015, it was announced that a new team of officers would be created specifically to ‘take forward criminal prosecutions for those who deliberately do not comply’ with NMW legislation. This may signal a change in direction of enforcement policy by HMRC in favour of greater criminal prosecution.97 Research by the (then) Department for Business, Innovation and Skills found little awareness among employers about the potential for inspection and enforcement by HMRC and no awareness of the potential for criminal proceedings.98 A similar emphasis is placed on non-criminal enforcement within EASI but enforcement action in practice has been more limited and variable over time. In March 2010, EASI published an ‘Enforcement Policy Statement’,99 in which it emphasised that compliance will typically be sought by issuing a warning letter and requesting rectification within a limited period. Similar to HMRC, EASI’s policy expressly notes that ‘the purpose of prosecution is condemnatory and a deterrent to others’.100 We have drawn on EASI’s Annual Reports from 2009 to 2013 to build a picture of EASI’s enforcement practices. The results of this documentary analysis are shown in Table 1. These data show that the majority of EASI’s enforcement activity occurs through sending warning letters. There have been very few prosecutions and prohibitions. The Government recently reported that there had been only nine prosecutions over two years (April 2013 and March 2015).101 The current list of individuals who are prohibited from running an employment agency stands at just 18.102 Table 1. EASI Enforcement Practices 2009–13 Period  Complaints received  Targeted/follow up inspections  Total infringements found  Warning letters sent  Monies recovered  Prosecutions  Prohibitions  2009/10  1,714  164  2,236  647  £204,000  1  2  2010/11  958  243  2,065  917  £295,010  1  8  2011/12  643  407  2,146  602  £128,523  3  0  2012/13  828  229  1,479  471  £169,184  7  2  Period  Complaints received  Targeted/follow up inspections  Total infringements found  Warning letters sent  Monies recovered  Prosecutions  Prohibitions  2009/10  1,714  164  2,236  647  £204,000  1  2  2010/11  958  243  2,065  917  £295,010  1  8  2011/12  643  407  2,146  602  £128,523  3  0  2012/13  828  229  1,479  471  £169,184  7  2  View Large Table 1. EASI Enforcement Practices 2009–13 Period  Complaints received  Targeted/follow up inspections  Total infringements found  Warning letters sent  Monies recovered  Prosecutions  Prohibitions  2009/10  1,714  164  2,236  647  £204,000  1  2  2010/11  958  243  2,065  917  £295,010  1  8  2011/12  643  407  2,146  602  £128,523  3  0  2012/13  828  229  1,479  471  £169,184  7  2  Period  Complaints received  Targeted/follow up inspections  Total infringements found  Warning letters sent  Monies recovered  Prosecutions  Prohibitions  2009/10  1,714  164  2,236  647  £204,000  1  2  2010/11  958  243  2,065  917  £295,010  1  8  2011/12  643  407  2,146  602  £128,523  3  0  2012/13  828  229  1,479  471  £169,184  7  2  View Large Information about the HSE’s enforcement practices is even more limited than information about EASI,103 with no breakdown of offences provided in the data on prosecutions.104 An examination of the Public Register of Notices concerning working time revealed just five entries over the last five years, of which two were duplicates. An examination of the historic register revealed two cases. No cases dealing with working time were found on the Prosecutions Register, although one reference was found to a prosecution in 2003 in a press report.105 There appears to be very limited enforcement of Working Time by the HSE with no, or virtually no, hard enforcement. Of all of the enforcement bodies, the Gangmasters’ Licensing Authority (GLA) was best known by employers and professional stakeholders. Though some agricultural businesses raised frustrations about the GLA not having sufficient resource to separate reliable intelligence from baseless allegation (such that competitor businesses could use the GLA as a tool against them), many praised the GLA’s work and the improvements that the Agency had brought to the food production and packaging sector. Since 2012, the GLA has moved its focus to cases where criminal activity is alleged.106 This is reflected in the GLA statistics relating to prosecutions and revocations, which are shown in Table 2.107 Table 2. GLA Prosecutions and Licence Revocations 2010–14 Year  S.12 Offence  S.13 Offence  S.18 Offence  Revocation— immediate effect  Revocation— no immediate effect  2010  14  4  1  1  31  2011  5  1  0  2  30  2012  12  3  0  1  15  2013  6  15  0  5  13  2014  4  1  0  1  15  Year  S.12 Offence  S.13 Offence  S.18 Offence  Revocation— immediate effect  Revocation— no immediate effect  2010  14  4  1  1  31  2011  5  1  0  2  30  2012  12  3  0  1  15  2013  6  15  0  5  13  2014  4  1  0  1  15  View Large Table 2. GLA Prosecutions and Licence Revocations 2010–14 Year  S.12 Offence  S.13 Offence  S.18 Offence  Revocation— immediate effect  Revocation— no immediate effect  2010  14  4  1  1  31  2011  5  1  0  2  30  2012  12  3  0  1  15  2013  6  15  0  5  13  2014  4  1  0  1  15  Year  S.12 Offence  S.13 Offence  S.18 Offence  Revocation— immediate effect  Revocation— no immediate effect  2010  14  4  1  1  31  2011  5  1  0  2  30  2012  12  3  0  1  15  2013  6  15  0  5  13  2014  4  1  0  1  15  View Large The data broadly show an increase in prosecutions and a significant reduction in the revocation of licenses. Further, the GLA—since its move to the Home Office—has been required to move its emphasis towards identifying ‘the most severe extremes of worker exploitation’, including trafficking of vulnerable people.108 While this is a legitimate policy choice for the government to make, it means that the individuals who are suffering from lower level denial of employment rights do not get the support they need. D. EU-8 Migrant Workers’ Knowledge and Experiences Beyond ETs We asked all of our interviewees about their knowledge and experiences of HMRC, the EASI, HSE and GLA. None of our migrant worker interviewees and few of our employer or advisor interviewees knew of the existence of these bodies. Of those few who had heard of these enforcement bodies, fewer understood what they did or how they might be involved practically in vindicating workers’ employment rights. Best understood by community advisors were the GLA and HMRC. We were able to obtain statistics about the number of referrals made to enforcement agencies by ACAS advisors through the general helpline between April and December 2015. The overwhelming majority of referrals were to HMRC (81.91%). Only 11.86% of referrals were to EASI, 5.62% to HSE and 0.61% to the GLA. We examined all available data about the enforcement practices of HMRC, the EASI, HSE and GLA to look for evidence about their interactions with EU-8 migrant workers. Data on GLA Appeal Tribunal cases were the only source we were able to access. Of 51 appeals, the nationality of the affected workers was referred to in just seven cases. Six out of these seven cases concerned EU-8 nationals. In addition to these six cases, the name of one agency run by the gangmaster suggested that it concerned EU-8 workers. There were also three appeals by gangmasters operating outside the UK; two in Poland and one in Lithuania. Two of these appeals give an insight into the important work of the GLA. In the first, Matt Job,109 the judgment describes that workers, primarily for agricultural jobs, were recruited through a Polish company, Inter Europe, and supplied to UK companies via an intermediary, Matt-Job. Workers were offered the option of other services being provided to them, in addition to finding them work, namely ‘transport and translation’. However, the appeal tribunal accepted that in reality, if these services were not accepted then the workers would not be offered any work. A similar picture emerges in the second case, UAB Top Job,110 where a Lithuanian-based recruitment agency supplied ‘clients’ to four gangmasters in the UK. They provided both ‘free-of-charge’ services, including finding an employer in the UK, and chargeable services such as translation and transport. Although said to be separable, the Appeal Tribunal held that in reality workers paid for a ‘package’ of both finding work and transport. The Appeal Tribunal also found that Top Job breached critical licence standards in relation to the safety of the transport provided since the journey involved driving for 36 hours with only a 90-minute break. The final aspect of our work on other enforcement bodies was exploring, in interview, the interactions between ETs and other enforcement bodies. Interviewees reported that there was little cooperation and interaction between them and we found limited evidence of joint working in relevant policy or other official documentation. 6. THE PROSPECTS FOR BETTER ENFORCEMENT OF LABOUR RIGHTS A. The LMEA Our exploration of enforcement bodies beyond ETs, which are less dependent upon the initiative of individual workers to take action, suggests that these bodies currently play a limited role in enforcement, focusing their efforts, in light of resource constraints, increasingly on the most egregious examples of exploitation that may trigger criminal law responses, including under the 2015 Modern Slavery Act. Knowledge of employment enforcement agencies’ roles and powers among advisers and workers is low. Save for the GLA, whose operation many people told us was unhelpfully limited to specific sectors, the work of employment enforcement bodies beyond Tribunals, seems to have little impact upon compliance. Will the creation of the new labour market enforcement agency (LMEA) help? The LMEA, headed up by a Director of Labour Market Enforcement, was established by the Immigration Act 2016. The LMEA coordinates and brings together HMRC, the EASI and GLA. The HSE has not been included.111 The aim for this new body is to address illegal immigration and ‘the businesses who exploit cheap labour from overseas’ which damage the labour market and ‘push down wages’ for others.112 The reform was also motivated by concerns about uncoordinated enforcement that can impose excessive burdens.113 How might this change to the employment landscape affect EU-8 migrant workers in the UK? We would suggest that some of the same confused thinking that we described at the start of this article persists. In the Government’s January 2016 response to the consultation about the new LMEA,114 a distinction is at first drawn between exploitation and deliberate non-compliance with labour standards. These ideas are later discussed interchangeably in terms of businesses struggling to ‘compete against rogue employers, distorting competition and reducing levels of employment over the longer term. Illegal levels of pay and conditions for exploited workers can depress or hold back pay and conditions more widely in the sector locally’. There is a lack of clarity about the problems that these new reforms are seeking to address. This seems likely to limit the positive effects that could result from this reform. Practically, the new LMEA seeks to make it easier to enforce labour rights and protect workers from exploitation. There are three particular features of the new enforcement model that seem especially pertinent to EU-8 migrant workers in light of our data. First, is the creation of a new post of Director of Labour Market Enforcement and Exploitation. This post has been created to ‘achieve a single set of priorities across enforcement bodies and more flexible allocation of resources’.115 The Director is responsible for setting the enforcement strategy and ensuring delivery of that strategy by the individual enforcement bodies. Individual enforcement agencies remain separate but the Director’s role is to enable better coordination and focus, ‘form[ing] a coherent view of the nature and extent of exploitation and non-compliance’.116 The second significant reform is to create a new offence of aggravated labour law breach where ‘employers deliberately, persistently and brazenly commit breaches of labour law and fail to take remedial action. Their pattern of exploitative behaviour neither meets the threshold for Modern Slavery offences […] nor can it be dealt with satisfactorily through repeated use of existing penalties or offences’.117 Despite broad support for this new offence in the consultation responses, following discussions with the Crown Prosecution Service around the difficulties in proving the necessary intention, the Government decided to move forward with a new type of improvement notice with a criminal offence of non-compliance rather than creating an offence involving an intention to deprive a worker of their rights. Although this represents a further example of the criminalisation of conduct of employers, it appears to be seeking to address the persistent but low-level breaches of employment rights with which many EU-8 migrant workers are concerned. The third aspect of the consultation relates to the expansion of the GLA’s remit. The Government’s view is that the GLA should be renamed and entirely reformed such that it becomes an Authority whose role is ‘in investigating regulatory breaches and criminal offences … wherever they affect employees and workers … in whatever sector they take place’.118 The work of the new Authority is to be as specified by the Director, based on a ‘dynamic assessment of the intelligence’ within the intelligence hub. This has not yet happened. The consultation and subsequent response suggests that the new Authority would ‘investigate breaches of the NMW/NLW, regulation of employment agencies, the proposed new aggravated labour market offence and other relevant criminal offences—where they are in connection with labour market exploitation’119 and seek to tackle ‘high harm, low volume cases of exploitation falling short of those tackled by the National Crime Agency’.120 However, the ACAS helpline would remain the point of contact for people to report ‘day-to-day’ infringements. While the increased coordination is to be welcomed, as is the expansion of the GLA’s remit, this represents a further example of the criminalisation of conduct of employers and fails to recognise the impact of frequent ‘day-to-day’ infringements, leaving this to the ACAS helpline and by implication, to the Tribunals.121 B. Alternatives for Reform Thus, while our data suggest that the LMEA reforms may have some promise to improve the enforcement of employment rights for EU-8 migrant workers, they add complexity to a system that is already experienced as impenetrably complex. There continues to be no single point of contact for workers who believe that they are being exploited or mistreated; the expanded role of the new GLA is muddled and overlapping with HMRC; and there has been no reconsideration of the appropriate balance between worker-led responses to mistreatment and proactive state-led monitoring and enforcement, or between criminal and civil law responses. The added complexity entailed by these reforms is also in stark contrast to the direction of reform to civil litigation and the civil court process. Lord Justice Briggs’ report of the Civil Court Structure Review emphasises the importance of improving the civil court system’s efficiency, flexibility and accessibility.122 He has recommended the creation of an Online Court to resolve claims worth up to £25,000 where the process would be automated, save where disputes had to be adjudicated.123 In his interim report, there was a suggestion of streamlining the civil courts system by, for example, incorporating the Tribunal system within the County Court structure.124 However, in the final report, he decided not to make any recommendations and to leave this question to others who were more qualified to propose detailed solutions. Streamlining is inadequately addressed in the recent employment enforcement reforms and there is a general lack of coordinated thinking between the employment and broader civil court context. Most significantly though, our findings suggest that a key piece of analysis is missing from these enforcement reforms, namely the social, practical and legal obstacles that migrant and similarly vulnerable domestic workers face when they try to enforce their rights. Although Lord Justice Briggs highlights the extensive work being done to support Litigants in Person, there is little recognition of the complexities involved in getting to a Tribunal in the first place and little exploration of the importance of enforcement mechanisms that are not solely worker-initiated, in light of those complexities and the fundamental powerlessness in the employment relationship of low paid and mostly unrepresented workers. As section 4 has shown, this problem is particularly acute in the case of (EU-8) migrant workers who do not bring claims, despite there being prima facie cases to answer. Many of these claims concern pay (unpaid wages or holiday pay). Importantly, although many EU-8 migrant workers perceive these claims to be complicated, they are not inherently complex claims: they are standard employment law problems that would be classified as ‘short track’ cases within the ET system, requiring minimal administrative and case management input. We have some practical suggestions about what might be done to address this enforcement gap to the benefit of both migrants (and national workers). First, there is a clear need for a single point of contact to which workers can go when they think they may have a straightforward claim relating to wages and holiday pay. This could be either through ACAS or through the Ombudsman that we suggest below. The point of contact needs to be low or no cost. It also needs to be accessible with very simple, multi-lingual, easily understood information and have strong, swift enforcement mechanisms. Enforcement mechanisms need to secure an individual remedy for the complainant as well as triggering broader investigation for systemic breaches through integrated working with other enforcement bodies including HMRC and the GLA. While improvements could be made to the current Tribunal system by, for example, simplifying the claim form, enabling judges to deal with some claims on the papers or by a more inquisitorial system,125 we consider that a more coherent and effective, albeit more radical, solution would be to create a Pay and Work Rights Ombudsman. The Financial Services Ombudsman (FSO) provides a helpful model. The FSO was set up by Parliament with specific statutory authority to determine consumer credit disputes by making an award for ‘such amount as the Ombudsman considers fair compensation for loss or damage’ and a ‘direction that the respondent take such steps in relation to the complainant as the ombudsman considers just and appropriate’.126 We see the benefits of creating an Ombudsman in these circumstances as 3-fold. First, complaining to such a body is likely to be less intimidating than making an application to the court. Second, an Ombudsman would be a single gateway for dealing with straightforward claims, and third, the ability to direct that a respondent take remedial steps would enable issues to be resolved across a business rather than on an individualised basis, thus helping to remove the focus on the individual complaints led model. The FSO’s work is tied explicitly into the work of the Financial Conduct Authority, such that both organisations are required to work together closely to ensure that their common functions are fulfilled effectively. Similarly, the work of a new employment Ombudsman could be strongly tied into the work of a single enforcement agency. A single enforcement agency, replacing the HMRC (for minimum wage enforcement), HSE, GLA and EASI would be preferable to the creation of the LMEA whose role is simply about better coordination. Further, following concerns raised by interviewees about the new enforcement agency’s role in relation to undocumented workers and its interaction with the Home Office, a single enforcement agency might operate more effectively if it were independent of the Home Office and focused solely on workers’ rights rather than immigration status. Thus, the combination of an independent Ombudsman working closely with a single enforcement agency that was only concerned with employment rights would represent a significant step towards filling the enforcement gap that we have identified. 7. CONCLUSIONS This article opened by recognising the multiple, and often inconsistent, narratives at play in the migration policy field: on the one hand, a narrative of exclusion that increases vulnerability by preventing migrants from accessing social security benefits and, on the other hand, a narrative of inclusion and protection through employment law and enforcement reform to give migrant workers rights and ensure that mistreatment is not left unchallenged. Our data suggest that EU-8 migrant workers perceive and experience the current enforcement landscape as exclusive and exclusionary. Many EU-8 workers bring with them from their home countries ideas about work, what constitutes mistreatment and appropriate responses to mistreatment. Many also have distinctive personal ambitions for their time in the UK that can conflict with regulatory protection. These imported experiences, beliefs, and ambitions can militate against individuals enforcing their employment rights at all. These twin factors are distinctive to (EU-8) migrant workers and perhaps explain the considerably reduced numbers in our data who go to Tribunal, and the data of others that indicates that non-UK-born workers are more likely to do nothing at all when faced with employment problems. Nevertheless, these two issues operate in addition to the practical and legal obstacles faced by many EU-8, and domestic, workers undertaking low-paid jobs in precarious employment contexts. For those who want to take action in the face of apparent mistreatment, the practical and legal obstacles to using ETs often prove insurmountable, making Tribunals unlikely forums in which migrant workers can vindicate their rights. This is despite evidence that Tribunal judges go to great lengths to ensure that migrant workers receive a fair hearing once they are through the doors. What emerges clearly from our data is an enforcement gap that needs to be plugged by readily enforced employment law: a gap comprised of cases of ‘everyday’ mistreatment at work (as opposed to modern slavery), and of workers (whether they are migrants or not) who are vulnerable within the Department for Trade and Industry’s 2006 definition as people who are at high risk of being denied their rights and who do not have the capacity or means to protect themselves. There has been too little joined up thinking about the combined effects on enforcement of the difficulties in accessing ETs, including the introduction of fees and cuts to local authority funding and the closures of free legal advice services that have resulted, and the legal environment that facilitates hyper-flexibility through the use of agency work and zero-hours contracts.127 To draw on Bridget Anderson’s language, we would argue that the role of the state in producing vulnerability has become ‘invisibilized’ in favour of its role as an apparent protector. As Anderson argues, ‘Rather than rescuing people because we know best, it might be better to regard migrants as sovereign selves who are driven, by state laws and practices, into excessive dependencies, on individuals who can thereby do them harm.’128 While the various enforcement bodies do help some of these workers there is still a considerable gap in protection for those EU-migrant workers (as well as non-EU workers and other vulnerable national workers). We have therefore suggested not only some simple reforms to the tribunal system but, more radically, the establishment of a Pay and Work Rights Ombudsman, as a one stop shop to deal with some of the more simple claims. This is no magic wand but this may be a practical step in the right direction. More fundamentally, our work points to a focus on job quality and job security. We concur with Bridget Anderson’s argument that ‘Concerns about the impact of immigration on “British workers” may ultimately be a conjuring trick, a masterpiece of public misdirection, when what merits attention are issues of job quality, job security and low pay.’129 We gratefully acknowledge funding for this project from the Cambridge Humanities Research Grants Scheme 2013/14, the support of the ESRC’s UK in a Changing Europe programme, and the work of the Faculty of Law’s Ethics Committee in granting our application for ethics approval. We also note with thanks the invaluable data collection assistance in Bury St Edmunds provided by Brogan Roache, Benjamin Mak and Emmeline Plews. 1 https://www.conservatives.com/manifesto (accessed 1 August 2017), p. 30. In fact, the UK’s new settlement deal produced the ‘emergency brake’; a watered down version of the four-year rule. 2 https://www.conservatives.com/manifesto (accessed 1 August 2017), p. 21, emphasis added. 3 From 28,000 between December 2013 and March 2014 to 53,000 between December 2014 and March 2015, with a trend in a continuing upward direction. Office for National Statistics, Migration Statistics Quarterly Report, August 2015, p.12: http://www.ons.gov.uk/ons/dcp171778_414818.pdf (date last accessed 1 August 2017). 4 From 75,000 between December 2011 and March 2012 to 116,000 between December 2014 and March 2015. Office for National Statistics, Migration Statistics Quarterly Report, August 2015, p.12: http://www.ons.gov.uk/ons/dcp171778_414818.pdf (date last accessed 1 August 2017). See also Migration Watch UK ‘The Outlook for EU Migration’ briefing paper MW 331, (23 June 2014), figures 2–4: http://www.migrationwatchuk.org/briefing-paper/331. Migration Watch believes that ‘at present immigration is neither sustainable nor well managed’: http://www.migrationwatchuk.org/about-us. See also the effect of short-term migration: https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/internationalmigration/articles/noteonthedifferencebetweennationalinsurancenumberregistrationsandtheestimateoflongterminternationalmigration/2016. 5 http://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/internationalmigration/bulletins/migrationstatisticsquarterlyreport/may2016#emigration-from-the-uk (accessed 1 August 2017). n. 4 at 5. 6 https://fullfact.org/immigration/do-eu-immigrants-contribute-134-every-1-they-receive/ (accessed 1 August 2017). 7 L. McDowell, A. Batzinsky and S. Dyer ‘Internationalization and the spaces of temporary labour: the global assembly of a local workforce’ (2008) 46 BJIR 750; J. May, J. Wills, K. Datta, Y. Evans, J. Herbert and C. McIlwaine, ‘Keeping London Working: global cities, the British state and London’s new migrant division of labour’ (2007) 32(2) Transactions of the Institute of British Geographers 151 at 159; and A. Stenning and S. Dawley, ‘Poles to Newcastle: grounding new migration flows in peripheral regions’, (2009) 16(3) European Urban and Regional Studies 273 at 283. 8 B. Anderson et al., ‘Fair enough? Central and East European Migrants in low wage employment in the UK’ (COMPAS 2007); S. Drinkwater, J. Eade and M. Garapich, ‘Poles apart? EU enlargement and the labour market outcomes of Immigrants in the UK’ (2009) 47(1) International Migration 16; and A. Stenning and S. Dawley, (2009) n. 7 above. 9 M. Sumption and W. Somerville, ‘The UK’s new Europeans, progress and challenges five years after accession’ (2010 EHRC report) at page 16. 10 A. Stenning and S. Dawley (2009), n. 7 above at 288. 11 M. Sumption and W. Somerville, (2010), n. 9 above, at 16. 12 S. Drinkwater, J. Eade and M. Garapich (2009), n. 8 above. 13 L.F. Vosko, ‘Less than adequate: regulating temporary agency work in the EU in the face of an internal market in services (2009) 2Cambridge Journal of Regions, Economy and Society 395–411 at 399 14 Precision Prospecting, Temporary workers in UK agriculture and horticulture: a study of employment practices in the agriculture and horticulture industry and collocated packhouse and primary food processing sectors (London: DEFRA, 2005). 15 For a helpful review see S. Currie, ‘Regular migrants in the irregular workplace: Central and Eastern European women in the UK after EU enlargement’ in (eds) H. Stalford, S. Currie and S. Velluti, Gender and Migration in 21st Century Europe (London: Ashgate, 2009), 107–130 at 112. 16 A. Stenning and S. Dawley (2009), n. 7 above, at 286. 17 See e.g. https://www.jrf.org.uk/report/experiences-forced-labour-uk-food-industry (accessed 1 August 2017). 18 C. Wirth Forsberg, ‘Mobile Citizens: Living the European Dream?’ DPhil Thesis submitted 2012. 19 S. Currie (2009), n. 15 above at 125. 20 Joseph Rowntree Foundation report ‘Central and East European migrants in low wage employment in the UK’, April 2006 https://www.jrf.org.uk/file/37162/download?token=xjVIcst6 (date last accessed 23 January 2017). 21 M. Okolski and J. Salt, ‘Polish emigration to the UK after 2004: why did so many come?’ UCL Migration Research Unit Discussion Paper, November 2014: http://www.geog.ucl.ac.uk/research/transnational-spaces/migration-research-unit/discussion-papers/MOJS%20revise%20041114_accept.pdf (accessed 1 August 2017). 22 http://lordashcroftpolls.com/2016/06/how-the-united-kingdom-voted-and-why/ (accessed 1 August 2017). 23 As the Economist notes, where foreign-born populations increased by more than 200% between 2001 and 2014, a Leave vote followed in 94% of cases: http://www.economist.com/news/britain/21701950-areas-lots-migrants-voted-mainly-remain-or-did-they-britains-immigration-paradox (accessed 1 August 2017). 24 Fn 21 at 125. 25 For a more detailed analysis of the various surveys and ensuing literature, see L. Barmes, Bullying and Behavioural Conflict at Work (Oxford: OUP, 2016), particularly at 11–37. 26 34% of respondents is noted in R. Fevre et al, ‘Fair Treatment at Work Report: Findings from the 2008 Survey’ BIS, September 2009 at 1 and 55. The figure is put at 32% in P. Pleasence and N. Balmer, ‘How people resolve “legal” problems’, Legal Services Board 2014 at 18. 27 40% of respondents in the previous five years in H. Genn, Paths to Justice (Oxford: Hart, 1999) at 42. 28 Genn (1999), n. 27 above at 42. Of the 6%, 41% of the problems were related to losing a job and 26% were concerned with changed terms and conditions. Only 12% related to getting pay or pension: this is strikingly different to our findings in relation to EU-8 migrant workers. 29 Fevre (2009), n. 26 above, at 55. 30 Pleasence (2014), n. 26 above, at 19. 31 The 2004 Civil Justice in England and Wales study put the figure at 10.5%, and the 2006–2009 surveys at 9.4%: P. Pleasence and N. Balmer, ‘Civil Justice in England and Wales 2009’, Legal Services Commission, 2010 at 49. The 2012 CSJPS saw no action being taken in 13.1% of situations (P. Pleasence and N. Balmer, (2014)), n. 26 above at 25. 32 See Genn (1999), n. 27 above, at 43 and Pleasence (2010), n. 31 above, at 53 respectively. 33 A. Pollert and A. Charlwood, ‘The vulnerable worker in Britain and problems at work’, (2009) 23(2) Work, Employment and Society 349. 34 Pleasence et al. (2010), n. 31 above, at 52. See similarly, Pleasence (2014), n. 26 above, at 38. 35 Pleasence (2014), n. 26 above, at 25. 36 Pollert (2009), n. 33 above, at 352. 37 Fevre (2009), n. 26 above, at 85 and 143. 38 C. Barnard and A. Ludlow ‘Enforcement of employment rights by EU-8 workers in Employment Tribunals’ (2016) 45(1) Industrial Law Journal 1. For analysis of EU-8 cases at Employment Appeal Tribunal level see C. Barnard ‘Enforcement of employment rights by migrant workers in the UK: the case of EU-8 Nationals’, in C. Costello and M. Freedland (eds), Migrants at Work (Oxford: OUP, 2014). 39 J. Holgate, ‘Organising migrant workers: a case study of working conditions and unionization at a sandwich factory in London’ (2005) 19(3) Employment and Society 463; D. Massey Spatial Divisions of Labour (London: Macmillan, 1995); and J. May, J. Wills, K. Datta, Y. Evans, J. Herbert and C. McIlwaine (2007), n. 7 above. 40 For example, S. Fredman, Making Equality More Effective: The Role of Proactive Measures (EU Gender Equality Network, 2009). 41 That we had greater success in accessing migrant workers through faith groups is consistent with other research that has highlighted the significance of faith communities for migrant workers in providing support through difficulties as well as material help. See e.g. K. Datta, C. McIlwaine, Y. Evans, J. Herbert, J. May and J. Wills, ‘From coping strategies to tactics: London’s low pay economy and migrant labour’ (2007) 45(2) British Journal of Industrial Relations at 404. 42 J. Eade, ‘Class and ethnicity: Polish migrant workers in London’ (2007) ESRC Full Research Report, RES-000-22-1294. 43 N. 42 above, at pages 10 and 11. A further study undertaken in 2010 of migration plans of EU-8 workers has found that money and work were the most commonly stated reasons for changes in migration plans, ‘with some migrants indicating that there was little else keeping them in the UK’. It also found that ‘migration strategies are, as shown, fluid and highly adaptive to shifting structural and individual conditions of which migrants’ are highly attuned to.’ S. Drinkwater and M. Garapich, ‘Migration strategies of Polish migrants: do they have any at all?’, (2015) 41 Journal of Ethnic and Migration Studies 1909. 44 M. Piore, Birds of Passage: Migrant Labour and Industrial Societies (Cambridge: CUP, 1979) at 64. 45 This is consistent with findings in J. Holgate, A. Pollert, J. Keles and L. Kumarappan, ‘Geographies of isolation: how workers (don’t) access support for problems at work’ (2011) 43(4) Antipode 1078. 46 Interestingly in a study in 2004, B. Anderson et al. found that EU-8 migrant workers were prepared to accept poor working conditions because the job they were doing was considered temporary, as opposed to necessarily their stay in the UK being temporary (2007, n. 8 above). They questioned whether this was particularly related to the sample group’s age and lack of dependents at that time. This accord with our interview data that as some EU-8 groups have remained in the UK and their life circumstances have changed, their view on the acceptable temporariness of their work has shifted. 47 C. Wirth Forsberg (2012), n. 18 above. 48 This is consistent with national data. See S. Altorjai, Over-qualification of immigrants in the UK, (Colchester: Institute for Social and Economic Research, University of Essex, 2013): https://www.iser.essex.ac.uk/research/publications/working-papers/iser/2013-11.pdf (accessed 1 August 2017). It is also consistent with other studies exploring EU-8 worker experience: B. Anderson, M. Ruhs and S. Spencer (2007), n. 8 above. 49 Fevre (2009), n. 26 above, at 118. This correlated with Pleasence’s finding that 25% of those experiencing employment problems had been dismissed or made redundant and a further 8% had resolved their problem by leaving their employer: Pleasence (2009), n. 33 above. 50 Pollert (2009), n. 33 above, at 353. 51 B. Anderson, ‘Precarious work, Immigration and Governance’ in C. Schierup et al., Migration, Precarity and Global Governance: Challenges and Opportunities for Labour (Oxford: OUP, 2015). 52 See for example, Dewhurst v CitySprint UK Ltd (ET/2202512/2016) and Aslam and Others v Uber B.V and others (ET/2202550/2015). 53 M. Sumption and W. Somerville (2010), n. 9 above. 54 This picture of migrant workers often being employed in national work groups is consistent with other research such as J. Wills, ‘The geography of union organising in low paid service industries in the UK: lessons from the T&Gs campaign to unionise the Dorchester hotel in London’ (2004) 37(1) Antipode 139 and J. Wills, Subcontracting, Labour and Trade Union Organisation: Lessons from Homerton Hospital and the London Living Wage Campaign (London: Queen Mary, University of London, 2006). 55 See similarly when discussing precarious work generally: B. Anderson, ‘Migration, immigration controls and the fashioning of precarious workers’ (2010) 24(2) Work, Employment and Society 300 at 304. 56 Pollert and Charlwood found similarly, that ‘workers were most strongly influenced by the advice of friends or colleagues (20%), followed by family and friends (16%).’ A. Pollert and A. Charlwood (2009), n. 33 above, at 350. 57 T. Wright and A. Pollert (2007) ‘The experience of ethnic minority workers in the hotel and catering industry: routes to support and advice on workplace problems’ ACAS research paper 03/06: http://www.acas.org.uk/media/pdf/0/b/03-06_1.pdf (accessed 1 August 2017). 58 For full report: http://www.vulnerableworkers.org.uk/files/CoVE_full_report.pdf (accessed 1 August 2017). See also M. Sumption and W. Somerville (2010), n. 9 above, at 28. 59 EU-8 workers who made use of CABx did not always find the help they needed. Specialist employment advice is not always available and few Bureaux offer support with representation in Tribunals. See N. Busby and M. McDermont, ‘Workers, marginalized voices and the Employment Tribunal system: some preliminary findings’ (2012) 41(2) Industrial Law Journal 166. 60 See, e.g., on the impact of cuts on community law centres: http://www.lawgazette.co.uk/analysis/features/law-centres-picking-up-the-pieces/5042728 (accessed 1 August 2017). fullarticle and more broadly. ‘Report of the Low Commission on the future of advice and legal support: tackling the advice deficit’, January 2014, Legal Action Group: http://www.lowcommission.org.uk/dyn/1389221772932/Low-Commission-Report-FINAL-VERSION.pdf. 61 The Trades Union Congress has gone to particular lengths. See, e.g., https://www.tuc.org.uk/free-training-polish-workers and http://www.pracawbrytanii.org/ (accessed 1 August 2017). 62 http://www.theguardian.com/business/2015/sep/20/hotel-cleaners-graphic-novel-unite- union-conditions (accessed 1 August 2017). 63 This is consistent with findings by A. Pollert and A. Charlwood (2009), n. 33 above, at 349. 64 See further Busby and McDermont, above, n. 59, and M. McDermont, S. Kirwan and A. Sales, ‘Poverty, social exclusion and the denial of rights to a fair hearing: a case study of employment disputes’ (2016) 24(1) Journal of Poverty and Social Justice 21. 65 See, e.g. A. Pollert and A. Charlwood (2009), n. 33 above, at 352. 66 Genn (1999), n. 27 above, at 43. 67 Department of Trade and Industry, ‘Success at work: protecting vulnerable workers, supporting good employers. A policy statement for this Parliament’, March 2006, at 25. 68 See, e.g., Balcikoniene v Governing Body of St Eugene de Mazenod Catholic Primary School and others 3304522/2010, judgment of 28 March 2011, [4–5] and Gorski v DSG Retail Limited 2603851/2011, judgment of 14 June 2012, [4–5]. We came across examples of Employment Tribunal application forms that had been presented—and accepted—notwithstanding their completion in an Eastern European language. Some interviewees described how, at times, experienced interpreters went beyond their formal role as ‘officers of the court’ by offering migrant worker claimants explanation and advice. 69 See, e.g., http://www.bristol.ac.uk/media-library/sites/law/documents/new-sites-publications/ Enforcement%20report_final.pdf (accessed 1 August 2017). 70 See e.g. s.14 National Minimum Wage Act 1998 and s.9 Employment Agencies Act 1973. 71 For example, the HSE enforce maximum weekly work, night work limits, health assessments for night workers, health of night workers, patterns of work and rest breaks for monotonous work, records of working patterns and compensatory rest. However, the HSE does not enforce other rights within the Working Time Regulations 1998, including time off, rest break entitlements or paid annual leave entitlements. 72 See e.g. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/ 418214/bis-14-621-national-minimum-wage-policy-on-hm-revenue-and-customs-enforcement-prosecutions-and-naming-employers-who-break-national-minimum-wage-law.pdf; http://www.hse.gov.uk/foi/internalops/ocs/001-099/1_6-apendices/app6.pdf; and http://web.bis.gov.uk/assets/biscore/employment-matters/docs/10-851-eas-inspectorate-enforcement-policy.pdf at para 10 (accessed 1 August 2017). 73 S.19A(1) National Minimum Wage Act 1998 as amended by the National Minimum Wage (Amendment) Regulations 2016. This is in addition to payment being pursued via the civil courts or the Employment Tribunal (s.19D(1)(c) and s.19D(1)(a) National Minimum Wage Act 1998). 74 S.3A Employment Agencies Act 1973. 75 S.31 National Minimum Wage Act 1998. 76 Reg.29(1) Working Time Regulations 1998. 77 S.6 Employment Agencies Act 1973. 78 S.12 Gangmasters (Licensing) Act 2004. It is also an offence under s.13 GLA 2004 to use an unlicensed gangmaster. 79 http://www.gla.gov.uk/Enforcement-and-Compliance/How-we-inspect-and-prosecute/ (accessed 1 August 2017). 80 Including powers of arrest (s.14), production, explanation and further information (s.16(1)(a)–(c)), powers of entry (s.16(1)(d)) and to obtain a warrant to enter premises and remove records and documents (s.17). Obstruction of a GLA enforcement officer constitutes a criminal offence (s.18). 81 The Gangmasters (Appeals) Regulations 2006. 82 http://www.hse.gov.uk/aboutus/strategiesandplans/businessplans/plan1516.pdf (accessed 1 August 2017). 83 It had total funding of £4m made up of the grant in aid (£1.4m) and £2.6m for enforcement activity under a separate service level agreement: ‘GLA moves to the Home Office’, 9 April 2014. www.gla.gov.uk (accessed 1 August 2017). 84 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/318841/Triennial_ReviewGangmastersLicensingAuthority.pdf (accessed 1 August 2017). 85 http://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2014-11-06/213790/ (accessed 1 August 2017). 86 http://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2015-10-13/11789 (accessed 1 August 2017). 87 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/471048/BIS-15-549-tackling-exploitation-in-the-labour-market.pdf (accessed 1 August 2017). 88 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/467388/foi-2015-16454-spend-on-national-minimum-wage-compliance.pdf (accessed 1 August 2017). 89 https://www.gov.uk/government/consultations/labour-market-exploitation-improving-enforcement; http://www.ft.com/cms/s/0/3b3d1970-798e-11e5-933d-efcdc3c11c89.html#axzz3r BIOFpkR (accessed 1 August 2017). 90 At para 2.2.3. 91 At 4.1.2. 92 At 4.2.1. 93 https://www.gov.uk/government/news/new-national-minimum-wage-offenders-named-and-shamed-february-2016 (accessed 1 August 2017). 94 https://www.gov.uk/government/news/national-minimum-wage-rogues-to-be-publicly-named-and-shamed-under-new-plans (accessed 1 August 2017). 95 https://www.gov.uk/government/news/hmrc-secures-record-46m-minimum-wage-arrears-for-underpaid-workers (accessed 1 August 2017). 96 http://www.theguardian.com/society/2014/nov/22/firms-minimum-wage-not-prosecuted (accessed 1 August 2017). 97 https://www.gov.uk/government/news/measures-to-ensure-people-receive-fair-pay-announced (accessed 1 August 2017). 98 Department for Business, Innovation and Skills, ‘Employment relations research series no.121: research into employers’ attitudes and behaviour towards compliance with UK NMW legislation’, October 2011. 99 http://web.bis.gov.uk/assets/biscore/employment-matters/docs/10-851-eas-inspectorate-enforcement-policy.pdf (accessed 1 August 2017). 100 At paragraph 10. 101 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/471048/BIS-15-549-tackling-exploitation-in-the-labour-market.pdf (accessed 1 August 2017). 102 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/403653/employment-agency-standards-inspectorate_prohibited_people_list__4_.pdf (accessed 1 August 2017). 103 http://www.hse.gov.uk/foi/internalops/ocs/001-099/1_6.htm#enforcement (accessed 1 August 2017). 104 http://www.hse.gov.uk/statistics/prosecutions.pdf (accessed 1 August 2017). 105 http://businessdatabase.indicator.co.uk/business_advice_directory/articles/news___working_time_regulations/first_hse_prosecution/UKTAHSAR_EU020101 (accessed 1 August 2017). 106 Written Ministerial Statement to Parliament 24 May 2012 and Report of the Triennial Review of the Gangmasters Licensing Authority, April 2014. 107 http://www.gla.gov.uk/Our-Impact/Revocations/ and http://www.gla.gov.uk/Our-Impact/Convictions/ (accessed 1 August 2017). 108 Above n. 45. 109 2011 Appeal 108/E/RV. 110 2011 Appeal 120/E/RV. 111 See now s.3 Immigration Act 2016. 112 https://www.gov.uk/government/speeches/pm-speech-on-immigration (accessed 1 August 2017). The link between the creation of the new agency and illegal immigration was repeated by Theresa May in the House of Commons on 28 May 2015, when she said its aim was ‘to crack down on the exploitation that fuels illegal immigration’. Hansard 28/05/15 column 211. 113 See e.g. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/ 52049/13-530-recruitment-sector-legislation-consultation-on-reforming-regulatory-framework.pdf with the Government response https://www.gov.uk/government/uploads/system/uploads/ attachment_data/file/212084/13-1021-reforming-the-regulatory-framework-for-the-recruitment-sector-government-response.pdf (accessed 1 August 2017). 114 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/491260/BIS-16-11-government-response-to-tackling-exploitation-in-the-labour-market.pdf (accessed 1 August 2017). 115 Para 66. 116 Para 71. 117 Para 90. 118 Para 109. 119 Para 114. 120 Para 116. 121 For further analysis of the LMEA, see A.C.L. Davies, ‘The Immigration Act 2016’ (2016) 45(3) Industrial Law Journal 431. 122 https://www.judiciary.gov.uk/publications/civil-courts-structure-review-final-report/ (accessed 1 August 2017) 123 Originally proposed by Richard Susskind and presented to the Master of the Rolls, in the ‘Online Dispute Resolution for Low Value Civil Claims’ report by the Online Dispute Resolution Advisory Group in February 2015. 124 https://www.judiciary.gov.uk/wp-content/uploads/2016/01/CCSR-interim-report-dec-15-final-31.pdf (accessed 1 August 2017). 125 On these points see the written evidence to Parliament by the President and Regional Employment Judges of the Employment Tribunals (England and Wales) at: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/justice-committee/courts-and-tribunals-fees-and-charges/written/21888.html and the Law Society Discussion Document for the consultation on tribunal fees at: www.lawsociety.org.uk/policy-campaigns/documents/making-ets-work-for-all-discussion-document/ (accessed 1 August 2017). Parallels could be drawn with the Money Claims Online system and the Accelerated Possession hearings in Rule 55 Civil Procedure Rules, whereby simplified, largely paper-based processes are used. 126 s229(2) Financial Services and Market Act 2000. 127 See e.g. Pulse Healthcare Ltd v Carewatch Care Services Ltd and Others (UKEAT/0123/12/BA) and Z. Adams and S. Deakin, Re-regulating Zero Hours Contracts (London: The Institute of Employment Rights, 2014). 128 B. Anderson ‘Where’s the harm in that? Immigration, enforcement, trafficking and the protection of migrants’ rights’ (2012) 56(9) American Behavioral Scientist 1241. 129 B. Anderson (2010), n. 55 above at 314. © Industrial Law Society; all rights reserved. For permissions, please e-mail: journals.permissions@oup.com. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Industrial Law Journal Oxford University Press

Beyond Employment Tribunals: Enforcement of Employment Rights by EU-8 Migrant Workers

Loading next page...
 
/lp/ou_press/beyond-employment-tribunals-enforcement-of-employment-rights-by-eu-8-zujAl0Xnkx
Publisher
Oxford University Press
Copyright
© Industrial Law Society; all rights reserved. For permissions, please e-mail: journals.permissions@oup.com.
ISSN
0305-9332
eISSN
1464-3669
D.O.I.
10.1093/indlaw/dwx020
Publisher site
See Article on Publisher Site

Abstract

Abstract Many EU-8 migrant workers work in low-skilled, low-paid jobs, particularly in sectors such as food processing and agriculture. Our interest lies in the experience of those migrant workers in the UK and specifically what happens when they are denied their employment rights. In earlier work, we have already shown that there was a significant underuse by EU-8 migrant workers of Employment Tribunals (ETs). So the questions for this article are three-fold. First, why do so few EU-8 migrant workers enforce their employment rights before ETs and to what extent do legal, economic, political and cultural landscapes, as they are experienced by migrant workers, constrain or enable enforcement action? Second, if migrant workers do not resort to ETs, what do they do? Do they simply move on, or do they use alternative enforcement mechanisms (such as the Gangmasters’ Licensing Authority)? How effective are these other enforcement processes and institutions in protecting the rights of migrant and similarly vulnerable domestic workers? And third, what might be done to improve the enforcement of employment rights for EU-8 migrant workers and for other vulnerable workers on the UK labour market, including non-EU migrants, especially in the light of the new labour market enforcement agency (LMEA)? We argue that the establishment of a Pay and Work Rights Ombudsman might help address some of the problems experienced by EU-8 migrant workers and other vulnerable national workers. 1. INTRODUCTION As the Brexit vote has shown, European migration is a highly politicised issue. Government policy, too, is confused and inconsistent. In its 2015 manifesto, the Conservative Party pledged to ensure that EU migrants wanting to claim tax credits and child benefit had to live in and contribute to the UK for a minimum of four years. This, the manifesto said, would reduce ‘the financial incentive for lower-paid, lower-skilled workers to come to Britain’.1 Yet, at the same time, the Party promised to ‘take further steps to eradicate abuses of workers, such as non-payment of the minimum wage, exclusivity in zero-hours contracts and exploitation of migrant workers’.2 While the first Conservative Party policy risks exacerbating vulnerabilities, by forcing migrants to do low-paid jobs without the support provided to similarly situated UK nationals, the second seeks to prevent abuse through protective regulation and by enabling migrants to enforce their rights. This divergent discourse is mirrored in popular press coverage of migration. On the one hand, the press has expounded the need to protect British jobs and social security entitlements for British workers. On the other hand, (certain parts of) the media call for migrant workers to be protected against exploitation. This is linked to arguments about social justice, as well as preventing undercutting national workers’ terms and conditions of employment. The Modern Slavery agenda, and the relevant Act of 2015, have shone a spotlight upon some of the most egregious treatment of workers. Our focus here is upon lower level, but nevertheless, poor treatment by employers of their migrant workforce. Central to debates about the treatment and rights of migrant workers are the implications of Article 45 of the Treaty on the Functioning of the European Union (TFEU). Article 45 TFEU entitles all EU nationals to look for employment in other EU Member States and grants migrant workers rights to equal treatment as to terms and conditions of employment as well as any social or tax advantages offered to domestic workers. Since accession of the so-called EU-8 states in 2004 (countries such as Poland and the Czech Republic), over two million EU-8 migrant workers have exercised their free movement rights under Article 45 TFEU and have arrived to work in the UK. The accession of Bulgaria and Romania (the EU-2 states) in 2007, led to a significant increase in immigration to the UK from these countries.3 EU-2 citizens now account for 22% of total EU immigration into the UK as compared with 29% from EU-8 countries. The global financial crisis, and the resulting high youth unemployment, especially in southern European States, has also led to an increase in migration to the UK from the ‘old’ EU-15 states.4 Much of the empirical evidence shows that EU nationals who come to the UK do so for work5 and that EU migrants are net contributors to the economy.6 However, significant empirical evidence shows that EU-8 migrant workers tend to be concentrated in low-skilled sectors for which they receive low pay, often through agencies or via gangmasters. We know, for example, that EU-8 migrants work particularly in agriculture, food processing and packaging, hospitality and construction7 and jobs in these sectors are commonly located in places where, until recently, there has been little history or experience of mass immigration.8 Work in these sectors is often low skilled: research from 2008 research showed that half of EU-8 migrants with jobs worked in unskilled occupations, compared to 20% of other immigrants and 18% native workers.9 Inevitably, given the unskilled occupations they occupy, the work of EU-8 migrant workers tends to be low paid.10 A study of earnings in 2007 showed that 89% of EU-8 and EU-2 workers earned less than £400 per week compared to 57% of UK-born workers11 and a 2009 study showed that recent EU-8 migrants earn around 27% less than the native group.12 A study in 2008 found that 25% of agency workers in the UK were migrant workers, although this figure was not broken down into EU-8 workers and other migrant workers.13 A 2004 study for DEFRA found that 90% of agency workers employed in second stage food processing were migrant workers, of which 64% were from accession states.14 Geddes showed that only 9% of 1,067 gangmasters registered with the GLA employed only British workers, whereas 23% employed only migrant workers. He found that 82% of gangmasters employ some Polish workers and 45% of gangmasters employ some Lithuanian workers. Thus, the literature reveals that the tendency for EU-8 migrants in general is to experience downward occupational mobility in the UK with the archetypal migrant as someone who is young and university educated, but who has been working in jobs categorised as low skilled, low status and low paid.15 In the context of research into migration in the North East of England, Stenning and Dawley have explained the reason for this combination of circumstances as the ‘ “work first” motivation of migrants’. They argue that because many migrants are looking for an immediate income, and thus for the first work available, they do not wait for work which is better paid or in a sector that matches their qualifications.16 The predominance of EU-8 migrant workers in low-paid, low-skilled jobs has implications for working conditions. While some have positive experiences of working in the UK, and are treated fairly, the experiences of others is less good, especially in sectors, such as food processing and packing, where research has found that migrant workers are frequently denied their employment rights.17 In her studies of Southport in 2007 and 2009, Forsberg noted that ‘most of the A8 nationals [she] interviewed in 2007 reported problems including low pay, freezing work rooms, insecurity, tied accommodation and long travel distances to work’.18 Other studies have found that EU-8 migrant workers’ experiences have been characterised by poor working conditions,19 including working longer basic hours and longer total hours than average for their occupation with few workers receiving paid holidays.20 Our work seeks to understand what happens when the employment rights of migrant workers are not respected in the UK.21 We have concentrated on EU-8 workers because this group has attracted some of the strongest anti-European migrant narratives. Our research was undertaken prior to, but in expectation of, the EU referendum. The level of EU migration into the UK was one of the main reasons why many voters supported the Leave campaign,22 especially in those areas that have witnessed a rapid increase in migration in recent years.23 The fate of those EU workers—and their successors—will be the subject of negotiations between the EU and UK in the years to come and will be of continued relevance to any future deal between the EU and UK. In this article, we focus on what has happened to those EU-migrant workers whose employment rights have been denied and what can be done to improve the levels of protection. Section 2 considers the extent to which those with an employment problem resort to the traditional legal mechanism of going to an Employment Tribunal (ET). The answer is very few, and among those who do, UK-born workers were more likely to report specific work-related problems and were twice as likely to take some form of action compared to non-UK born respondents. So the question for section 4, is why do so few EU-8 migrant workers enforce their employment rights before ETs? If migrant workers do not resort to ETs, what do they do? Do they simply move on, or do they use alternative enforcement mechanisms (such as the Gangmasters’ Licensing Authority)? In section 5, we consider the effectiveness of alternative enforcement processes and institutions in protecting the rights of migrant and similarly vulnerable domestic workers. Section 6 considers considering what might be done to improve the enforcement of employment rights for EU-8 migrant workers and for other vulnerable workers on the UK labour market, especially in the light of the introduction of the new labour market enforcement agency (LMEA). 2. JUDICIAL ENFORCEMENT MECHANISMS The expected response to rights being denied, from a legal perspective, is that workers bring claims before ETs. Indeed, in 2009, Currie suggested that on expiry of the transitional arrangements for migrant workers, ‘an enhanced legal status can undoubtedly contribute to a more secure and protected migration experience, particularly for those with a certain degree of rights awareness who are able to directly seek to enforce their rights in the event of default (by an employer for example). Furthermore, the potential of law to elicit more profound change […] by impacting on perceptions of EU-8 and EU-2 nationals should not be underestimated’.24 ‘Legal Needs’ surveys have explored the people’s responses to ‘justiciable problems’ in a number of different ways over the last few decades.25 However, none of them break the statistics down in terms of national or ethnic origin, only providing data on race in the context of colour. Nevertheless, they are informative and enable us to draw some tentative comparisons between domestic workers’ responses to employment problems, and the responses of EU-8 migrant workers. The data show that between one third26 and 40%27 of survey respondents reported one or more justiciable problem. The percentage breakdown of these problems as employment problems has varied considerably: 6% of reported problems were employment problems in the 1996 survey28, whereas 29% were employment problems in a 2009 study29, and 12.2% were noted in the 2014 study.30 For our purposes, of particular relevance are studies showing that around 10% of people who experience any type of justiciable problem do nothing about it—here we are not simply referring to litigation, but rather situations where people do nothing at all, including not seeking informal resolution or obtaining advice.31 When the figures are broken down to focus only on individuals with employment problems, 16% of people in the 1999 survey did nothing about their problem. In 2009, the equivalent figure was 9.4%.32 When low-paid, non-unionised workers were considered as a group in the Unrepresented Worker Survey (URWS), it was found that 14% of those with a problem at work did nothing about it.33 Those who had been in their jobs for less than a year and in semi-skilled manual occupations were least likely to do anything. Individuals’ income was found to make little difference to their response to a justiciable problem at work, except in cases of those earning above £50,000 per annum, which increased the likelihood that action would be taken.34 A 2014 study found that 6.4% of people with a justiciable problem had it resolved through a court, tribunal or formal appeals service.35 In the URWS, which focused solely on problems at work, 2.8% of workers went to an ET to solve their employment problem.36 What these data make clear is that despite many people experiencing justiciable problems at work, very few people take action in the ET to solve their problem. Some data suggest that people in low-paid and non-unionised employment are even more likely to do nothing in the face of a justiciable problem at work. And of even more direct application to our work is Fevre’s finding, based upon 2008 survey data, that UK-born workers were more likely to report specific problems in relation to work and were twice as likely to take some form of action compared to non-UK born respondents.37 It is this sharp distinction between the actions of UK-born workers and non–UK-born workers that is of particular interest to us. In a study published earlier this year, we examined how EU-8 migrant workers use ETs to enforce their rights.38 Like Fevre, we found significantly fewer claims by EU-8 migrants being disposed of by ETs than expected relative to the size of the EU-8 working population in the UK. At most, we found that Tribunals disposed of 1,548 claims brought by EU-8 migrant workers over three calendar years (2010–12 inclusive) out of an annual case disposal total of over 100,000. We would have expected closer to 12,000 case disposals if employment rights had been enforced by EU-8 migrant workers at levels proportionate to official population size. For those who made it to Tribunals, we found that they were just as likely to succeed in their claim, at least in part, as they were to fail altogether. There were, however, significant obstacles to bringing a claim in the first place, with the likely consequence that the employment rights of many EU-8 workers were not protected. This is consistent with the work of Holgate, Massey and others, which has highlighted the role of ethnicity and nationality in shaping divisions of labour and the (in)ability of workers to draw upon social networks and legal systems to enforce their rights.39 It also mirrors findings from research in the fields of discrimination and equality, which have focused on the challenges faced by litigants bringing claims, whatever their nationality.40 So the question, then, is why do so few EU-8 migrant workers enforce their employment rights before ETs? To what extent do legal, economic, political and cultural landscapes, as they are experienced by migrant workers, constrain or enable enforcement action? This is considered in section 4. If migrant workers do not resort to ETs, what do they do? Do they simply move on, or do they use alternative enforcement mechanisms (such as the Gangmasters’ Licensing Authority)? If so, how effective are these non-judicial processes and institutions in protecting the rights of migrant and similarly vulnerable domestic workers? This is considered in section 5. However, we begin with a brief description of the methodology we used to explore these questions. 3. METHODOLOGY Two key sources of data inform the analysis that follows: interview data (with professional interviewees and EU-8 migrant workers) and publicly available data about the operation of enforcement agencies beyond ETs. Where necessary, some public data have been obtained through requests under the Freedom of Information Act. We conducted a total of 25 formal interviews with staff working for relevant advice centres, Government agencies or other bodies working with EU-8 migrant workers. We interviewed a trade union representative whose branch was predominantly made up of EU-8 migrant workers. We also made contact with a professional association for gangmasters and discussed their work, and interviewed a labour provider and a business that engaged substantial numbers of EU-8 workers. Thereafter we sought to contact EU-8 migrant workers directly. This proved difficult. It became apparent, and in two cases we were told explicitly, that EU-8 workers were not willing to speak with us. It was explained that workers were not keen to talk to those outside of their own community and/or many were working such long hours that they did not have the time to speak to us. With persistence and some creativity in reaching out to local community groups, particularly through priests working within Polish and Lithuanian dioceses,41 we were able to interview 20 EU-8 workers individually. We also held five focus groups. Most of our worker participants were Polish, Lithuanian or Latvian nationals. They had diverse occupational backgrounds, ranging from agricultural, retail and administrative work, to dentistry and computer science. Most had been resident in the UK for over two years; some had been working in the UK since accession of their home countries to the EU in 2004. Participants were identified opportunistically and interviewed often within considerable time and other constraints. Where possible, interviews were recorded. In some cases, a translator was used to overcome communication barriers. Questions focused on four key issues: experiences of work (the legal and relational nature of the employment relationship, including any experiences of unfair treatment), responses to unfair treatment (including knowledge and use of enforcement bodies other than ETs), rationales for responses to unfair treatment and barriers to enforcement. We were interested, throughout, in the extent to which interviewees felt that workplace experiences and responses to mistreatment were particular to (EU-8) migrant worker status as compared with domestic workers. Interviews were semi-structured to provide opportunity for participants to steer the conversation as appeared relevant to their individual circumstances and experiences. In parallel with these interviews, we sought to establish what other enforcement agencies (including HM Revenue and Customs [HMRC], the Health and Safety Executive [HSE] and the Gangmasters Licensing Authority) were doing on the ground. We analysed publicly available documents about enforcement strategies and statistics; we considered recent consultation documents about reform and undertook interviews with a member of the Gangmasters’ Licensing Association (GLA) and statisticians from the Advisory, Conciliation and Arbitration Service (ACAS). ACAS provided data about the use of their workers’ helpline before and after incorporation of the Pay and Work Rights Helpline into ACAS as well as data about the use of, and experiences during, Early Conciliation. 4. WHY DO SO FEW EU-8 MIGRANT WORKERS USE ETS? In this section we present findings from our interviews as to why so few EU-8 migrant workers enforce their rights before ETs. Our data show some barriers that are common to, and well-known in the literature as applying to all workers who are in precarious or vulnerable work (sub section B). However we start with two distinctive aspects of our data that we would suggest are significant drivers in shaping how EU-8 workers respond to problems at work (sub section A). A. Distinctive Interests, Understandings and Experiences Our data suggest that EU-8 migrant workers’ general experiences of mistreatment, and their responses to it, were shaped by two key factors: first, their particular plans and motivations for working in the UK, and second, the occupational customs and practices of their home Member State. (i) Periods of Residence in the UK (a) Introduction Interviewees were quick to draw distinctions about patterns of enforcement based upon how long migrant workers intended to stay in the UK and their consequent priorities and degree of social and psychological integration. Interviewees broadly distinguished between three different approaches to migration: those who had come to the UK and planned to settle here permanently; those who planned to work in the UK for 2–5 years before returning home; and those who worked only for a very short period, for example for the cauliflower- or daffodil-picking season. There are parallels between this three-fold distinction drawn by our participants and Eade’s typology of migrant Polish workers, based upon differences in their approaches to migration:42 ‘Storks’ (circular migrants), ‘Hamsters’ (tending to treat their migration as only a capital raising activity), ‘Searchers’ (keeping their options open) and ‘Stayers’ (those who intend to remain in the UK for good).43 In the sections that follow, we elaborate upon the distinctions that were drawn across these three groups in terms of experiences of, and responses to, mistreatment at work. (b) Those wishing to settle permanently in the UK Those in this first group of EU nationals who wished to settle permanently in the UK were said to be most likely to take action about mistreatment at work; those in the third group were considered least likely. This is consistent with Piore’s work that describes a shift in migrants’ views and practices of work from purely instrumental, hyper-mobile and socially detached to more permanent and embedded, by which time ‘instability of employment is no longer a matter of indifference’.44 Polish nationals were said to be the most common constituent of this first group. This is consistent with our previous quantitative analysis of ET decisions. In the 148 cases from our dataset where there was an express reference in the Tribunal decision to the claimant having EU-8 nationality, 127 of those cases (or 85.8%) were brought by Polish claimants. The same picture is reflected in data about use of the ACAS helpline: in 2015, 47.4% of calls made to language line were for Polish; the second most requested language was Spanish, accounting for only 6.77% of calls. In some ways, it is not surprising that Polish nationals make greatest use of ETs: Poles are the largest group of EU-8 migrants in the UK. However, when interviewees were asked why they considered Poles to be the most proactive EU-8 migrant group in challenging mistreatment, a more complex picture emerged than simply population size. Interviewees observed that Polish workers generally had been working in the UK for a longer time and tended to be part of a more settled community compared to nationals from other EU-8 countries. Their length of residence had seen them assume more responsible roles in the workplace. This responsibility was described as giving Polish workers greater stability and confidence in their prospects and value. Interviewees told us that this increased their social capital and, from this, stronger communities and organisations of support had grown. These community organisations had raised legal consciousness and equipped workers with practical support and knowledge about how to navigate the employment enforcement system. However, even among this group, the attitude to enforcement of employment rights was not consistent: some questioned whether enforcement was necessary, or even desirable. There was a strong emphasis in the data upon workers resolving situations for themselves such that for many interviewees, moving jobs was seen as the obvious and natural response to workplace difficulties. In addition, many migrant workers described their communities as distinct and isolated from non-migrant communities: many preferred to create alternative social networks within their own national group rather than making use of existing networks of support (such as Citizens Advice Bureaux [CABx]). Some migrant workers were reluctant to share and seek advice about their workplace problems with others, even from their own national community. Problems were often internalized and individualized. This was explained mostly as a desire to be seen to be coping and not wanting people within their own community ‘knowing my business’.45 We found little evidence of cooperation or solidarity between different national groups; with some significant exceptions, there was a great deal of silo working by single national groups (i.e. Polish support groups catering only for Poles and seeing issues as Polish specific rather than common to EU-8 migrants as a whole). (c) Those wishing to live in the UK for 2–5 years Interviewees described the second group of EU-8 workers as those who intended to work in the UK for 2–5 years before returning to their home Member State. They were distinguished on the basis of common specific motivations for working in the UK, namely earning the maximum amount of money in the shortest period possible, often to save to buy a house or business at home or to send home to support family.46 Interviewees told us that this influenced EU-8 workers’ approaches to problems in two ways. First, it meant that many workers were unwilling to take advantage of some rights, less still enforce those rights, because to do so would conflict with their objective to maximise income. The enforcement of working time rights is a particularly good example of a right that was thought to conflict with personal ambitions: EU-8 migrant workers in this group wanted to work hours that considerably exceeded the maximum working week prescribed by the Working Time Regulations 1998 because this enabled them to earn more pay. Secondly, short-term income maximization objectives meant that this group of workers did not want to ‘waste time’ taking a dispute. In the face of mistreatment, their preferred response was to move to another job in order to keep earning as much as possible. Forsberg noted a similar phenomenon in her study of migration in Southport in the North West of England, finding that for most of her interviewees, life was organised around work and that ‘the ‘upward’ labour market mobility of A8 nationals happened, then, at a very low level, not with the primary aim to get out of low waged work but rather to avoid abusive working conditions set by agencies and employers’.47 It was generally thought to be quite easy for migrant workers to find alternative work, especially in areas such as Lincolnshire where demand for (low skilled) migrant labour is high. However, finding high-quality alternative work could be difficult, especially work that required recognition of a professional qualification obtained outside the UK. Many of the migrant workers we interviewed were working in jobs for which they were over-qualified.48 While we found quite a lot of evidence of people changing jobs in the face of mistreatment, this makes our data somewhat out of line with other datasets. For example, Fevre found that 73% of those surveyed who had experienced problems at work had stayed with the same employer, whereas only 24% had left as a direct result of the most serious problem that they had reported.49 In the URWS, the figure was 58% who had stayed in the ‘problem’ job.50 This contrasts significantly with the consistent explanation by EU-8 migrant workers and advisers dealing with this group of workers as to how they tended to deal with problems at work. (d) Short-term workers The third group of EU-8 workers as identified by our participants worked only for a very short period in the UK and took a similar, but more extreme, approach to mistreatment and enforcement as the second group. As they were in the UK for so little time, they wanted to maximise their income to an even greater degree. This group included highly skilled and professionally qualified workers, or people who were working towards qualifications. Interviewees told us that many people in this group were capable of understanding their rights, but the pressure of earning money meant that they did not want to raise issues. Given the short-term nature of work it was also possible that any dispute would not be resolved until after they had returned to their home Member State, which made raising it feel pointless. (ii) Cultural Expectations and Previous Experiences of Work In addition to migrants’ motivations for coming to the UK and expected length of stay, our data indicated that the occupational customs and practices of home Member States influenced migrant workers’ general approaches to mistreatment and enforcement. Many interviewees talked about how the former Soviet Union had formed their ideas about work and shaped their experiences of work. As one Polish interviewee, Raj, put it ‘It feels like Poland has not mentally recovered from communism yet.’ Work was described as a duty such that the threshold for complaint was higher. Interviewees also took the model of workers’ rights from their home country (a weaker sense of individual rights and freedoms within the workplace) and extended it to their experience in the UK. In the face of mistreatment, some workers talked about their reluctance to engage with State bodies to explore and enforce their rights. They linked this to previous negative experiences of engaging with ‘authority’ in, say, Poland or Latvia and the continued legacy of communism. There was some evidence that EU-8 migrant workers had different views to British workers about the sorts of workplace dispute that required external intervention for resolution. The suggestion was that EU-8 migrant workers more often resolved matters themselves through informal means in which the employer was not involved. This way of ‘doing business’ was described as imported from migrant workers’ home States. One employer in the food packing sector, for example, described how every year or two, its workforce, which consisted almost entirely of Lithuanian nationals, became disgruntled with their supervisor. Allegations were made, often anonymously, and difficulties created in order to remove the individual. This interviewee drew a contrast between the ‘coup’-like nature of this response and a process-oriented approach, where issues are raised and pursued through the company grievance procedure. The employer suggested that British workers were much more likely to pursue a process-oriented approach. The ‘coup’ response was linked particularly to cases of conflict between and within the EU-8 community, for example, between two Polish workers or between a Polish supervisor and a Lithuanian worker. B. Practical and Legal Obstacles to Bringing Claims to ETs We turn now to the practical and legal impediments to bringing claims before ETs. Four key impediments emerged from our interview data: (1) precarious employment relationships; (2) lack of knowledge or misunderstanding about what Tribunals are for; (3) inadequate opportunities for specialist, free advice in the migrant worker’s native language and (4) feeling that it would be impossible to succeed before a highly complex Tribunal system. (i) Precarious Employment The primary impediment to Tribunal enforcement was a precarious employment relationship that generated opportunities for exploitation. Of course, precarity is not restricted to low-paid migrants and, as we have noted above, precarity also impacts upon the enforcement of rights by low-paid non-migrants. However, in the interviews, as well as the data described in section B above, it became apparent that a greater proportion of migrant workers are ‘particularly susceptible’ to this precarity.51 Employment for migrant workers through agencies, and on casual or temporary bases was typical. Zero-hours contracts were common. Although it is an increasingly well-recognised phenomenon that employers use ‘self-employment’ as a vehicle to avoid employment rights,52 we did not find as much evidence of self-employment, whether actual or false, as we had expected. Nevertheless, the nature of employment relationships that were in play led EU-8 migrant workers to believe that they could not present a claim to an ET because they did not have the necessary employment status or continuity of service. In some cases, this belief accurately reflected the law, such as where a worker had not been employed for more than two years for the purpose of enforcing unfair dismissal rights. However, more often, the situation was not so straightforward and it seemed possible to make the case that the individual had the necessary employment status for the purpose of enforcing some rights. The complex law on employment status and the different types of status required to enforce different types of right, were not easily understood by EU-8 migrant workers or some of their advisors. Entwined with barriers created by legally uncertain employment status were fears about the consequences of raising a dispute. There were particular concerns about the possibility of reprisal by way of being ‘blacklisted’ or being required to undertake less attractive work. Sumption and Somerville noted similar concerns in 2010, that workers were not prepared to raise complaints because they feared that they would lose their jobs.53 Companies using their own agencies to employ staff exacerbated workers’ feelings of vulnerability: the lack of division between end-user and agency-made workers more fearful of raising complaints. Workers said that only the ‘very brave’ dared to complain, let alone complain to an ET. In Peterborough, EU-8 workers told us about practices whereby firms routinely cease to offer work through agencies, even to good workers, once they had been working for six months. The purpose of this was said to be to evade any possible implication of worker status with the user firm. If it was possible for good workers to be treated in this way, workers were even more anxious about what would happen if they raised a dispute. Other features that were highlighted as particular to EU-8 employment relationships, and that were said to exacerbate the precarity of EU-8 workers’ circumstances, included living in accommodation that was tied to the employer, not being able to speak English, and working long or anti-social working hours. We found several examples of tied accommodation in the agricultural sector in Lincolnshire. In one case, agricultural workers all lived on site in mobile homes that were provided by the employer. They were only permitted access to the local town through mini buses that also were employer owned. Few could speak English and workers had little incentive or opportunity to learn English because almost all of their co-workers were EU-8 workers, they could not afford the cost of classes, or they could not get to class because transport was only provided through their employer.54 In other cases, interviewees told us that they could not attend English classes because work was offered and required at short notice (they were employed on zero-hours contracts). Without being able to speak English, workers considered that it would be impossible to enforce their rights. More broadly, working long or anti-social working hours for low pay meant that some EU-8 workers felt that they did not have, or could not afford, time to enforce their rights.55 (ii) Lack of Knowledge About Tribunals The second key impediment to enforcement through ETs was a lack of knowledge or misunderstanding about the role of Tribunals and how they are accessed. Many workers believed they had to pay to speak to anyone about enforcing their rights. This included the police and, where workers knew of its existence, the Gangmasters’ Licensing Authority. Workers similarly expected that they would have to pay to receive any form of advice. Awareness about sources of free advice, such as through CABx and Law Centres, was low. Reliance upon friends and colleagues for advice was high.56 In common with Wright and Pollert’s research, we also found that EU-8 workers had a high threshold for registering their workplace experiences as ‘problems’.57 There was a view among workers and some advisors that it would only be appropriate to take a case to a Tribunal if the mistreatment was ‘really serious’. For example, one advisor we met was emphatic that Tribunals were not for small sums of money like £200; rather they were only for ‘extreme cases’. These misunderstandings about the role of Tribunals ran alongside the cultural issues discussed above, with many EU-8 workers being concerned about engaging with Tribunals as a body of State power. They expressed a broad distrust of authority and an expectation of undefined difficulties if they went to a Tribunal, including unwanted scrutiny of their right to reside and work in the UK. (iii) Language Issues Lack of knowledge or misunderstanding about enforcement was closely tied to the third impediment, namely weaknesses in the provision of free legal advice in workers’ native languages. The Trades Union Congress (TUC) Commission on Vulnerable Employment made similar findings: that migrant workers had particularly low awareness of their employment rights, and this was exacerbated by limited understanding of English.58 We identified some community organisations that provide employment advice for EU-8 nationals in their own language. SOS Polonia, an advice and support organisation based in Southampton, is a good example of this. However, shortcomings as to language support or employment law expertise, or both, were common.59 Cuts to Local Authority funding has exacerbated difficulties of accessing high-quality advice in workers’ native languages.60 EU-8 workers’ preferences to access advice through organisations from within their own community rather than organisations such as CABx were explained partly in terms of language. Language line, the telephone translation service used by CABx, was considered to be a poor substitute for face-to-face advice. Though some trade unions have produced simple information about employment rights in EU-8 languages,61 interviewees emphasized that this did not obviate the need for individual advice. Simple messages, such as the graphical cartoon format used by the Hotelworkers branch of Unite,62 raised legal consciousness but needed elaboration and application to an individual’s case. There is negligible translated information about enforcement processes. We found no information in languages other than English in ET waiting areas. None of our EU-8 worker interviewees were aware that interpreters can be provided free of charge to them in Tribunals. (iv) Perception of Low Chance of Success The final impediment to Tribunal enforcement was a perception among EU-8 migrant workers that there was little point raising a claim before a Tribunal because they would not win.63 For some, this was because they believed that Tribunals, as State bodies, would be biased in favour of employers. For others, the complexity of the legal system made them feel like outsiders and therefore unlikely to succeed in their claims.64 Interviewees felt that legal and systemic complexity could be exploited readily by employers in ways that made attempts to enforce their rights futile. Several interviewees gave accounts of employers ‘disappearing’ when other workers had pursued them for money that was owed. These employers reappeared, phoenix-like, under a different name and carried on with the work they were doing before. Experiences like these led workers to believe that employers would inevitably find a way to ‘win’. Other studies have found high levels of dissatisfaction among workers who took formal action in response to workplace problems.65 This impediment was very much subsidiary amongst the issues that arose form our interviews. By contrast, it was the primary driver in Genn’s study as to why people did nothing about employment problems: 16% of people who had done nothing about an employment problem (that is, not even sought advice, let alone gone to a tribunal) cited this as the reason.66 By contrast in our interviews, this was by no means the primary concern that arose and, as our earlier research has shown, it is not supported by the evidence: EU-8 migrants who did go to a tribunal had broadly the same success rate as national workers. 5. ENFORCEMENT BEYOND ETS A. Introduction What emerges from the data presented above is a community of workers who fit squarely within the Department for Trade and Industry’s 2006 definition of ‘vulnerable’: many are at high risk of being denied their employment rights and many do not have the capacity or means to protect themselves from that abuse.67 In this context of vulnerability, our data suggest that ETs are insufficiently accessible enforcement forums for EU-8 migrant workers. Though we found that Tribunals took a generous and inclusive approach to EU-8 claimants, many of whom did not have legal representation and could speak little English,68 these positive experiences of enforcement are too few in number because so few EU-8 migrant workers feel able, practically or legally, to present claims. There are also significant shortcomings, which we, and others, have highlighted,69 in the enforcement of ET awards such that successful claimants may not recover that to which they are entitled. Positive experiences in Tribunals do not count for much if workers are not receiving what they are owed. Although some practical steps could be taken to increase the accessibility and effectiveness of ETs for EU-8 workers, our data point to the importance of less individualized enforcement mechanisms to ensure the robust protection of migrant workers’ rights in practice. With this in mind, this section examines the role played by the main enforcement bodies beneath the enforcement ‘peak’ of ETs. We focus on the enforcement powers, strategies and practices of the Gangmasters Licensing Authority (GLA) (now restructured and renamed Gangmasters and Labour Abuse Authority), HMRC in relation to minimum wage, the HSE in relation to working time and the Employment Agencies Standards Inspectorate (EASI). Our central contention is that there is a significant enforcement gap, which particularly affects vulnerable workers, and many migrant workers as a sub-category of that ‘vulnerable’ group. Enforcement agencies are not resourced or operated in ways that do enough proactively and systemically to protect the rights of vulnerable workers against ‘everyday’ mistreatment as distinct from some of the most egregious behaviours that are covered by the Modern Slavery Act 2015. We argue that a focus on criminalisation within the policy response to worker exploitation is welcome, but is no substitute for private law rights for workers within an enforcement system that is widely understood, widely accessible and adequately resourced. We begin this section with an overview of the powers, sanctions and budgets of enforcement bodies in the employment field outside of ETs. B. Overview of Powers, Sanctions and Budgets HMRC, the HSE and the EASI operate in a broadly similar way. Relevant officers are given powers to investigate breaches of employment law provisions falling within their remit.70 Each agency will only enforce certain rights. The rationale by which enforcement agencies determine which rights are included or excluded from enforcement is not clear.71 If a breach is found, compliance is usually sought informally,72 failing which civil sanctions may apply. In relation to HMRC, financial penalties can be sought up to 200% of the total underpayment.73 Where the running of an Employment Agency is considered by EASI to be unsuitable, a prohibition order may be sought.74 Alternatively, criminal sanctions may apply, for example, for refusing or wilfully neglecting to pay the National Minimum Wage (NMW),75 failing to comply with a working time requirement,76 and demanding or receiving a fee for finding a person work.77 The GLA operates in a fundamentally different way to the other three bodies. Gangmasters must be licensed and it is an offence to operate as a gangmaster without such a licence.78 The GLA licenses and enforces the requirements of the Gangmasters (Licensing) Act 2004. It inspects all new businesses and undertakes random inspection checks.79 GLA officers are given powers to enable their investigation.80 Businesses are inspected against a scoring system: failure to meet a non-critical standard results in eight points and failure to meet a critical standard results in 30 points. Licences are usually revoked where the overall score exceeds 30 points, meaning that a single critical standard failure may be fatal. Critical standards include failure to pay the NMW, the withholding of wages, and restricting workers’ movements. Requirements to respect workers’ rights to rest periods, maximum working week hours and annual leave within the Working Time Regulations are non-critical standards, as are the right to belong to a trade union and the requirement not to discriminate. The Gangmasters’ Licensing Authority Appeal Tribunal hears appeals against the refusal or revocation of a licence, the attachment of a condition or the refusal to transfer a licence.81 Funding for the HSE, GLA and EASI has progressively reduced over recent years. In 2011/12, the HSE’s Grant-in-Aid from the Government stood at £228.1m. By 2015/16, its budget had almost halved to £145.9m.82 The GLA’s Grant-in-Aid reduced from over £1.6m in 2011/12 to £1.4m in 2013/14, though it had further income for enforcement activity via the Home Office.83 Nevertheless, there was a consequential reduction in staff from 100 in to 68 over the same period.84 EASI’s resourcing is opaque. In answer to Parliamentary questions, EASI said that in 2012/13 its budget was £526,068, with 16 ‘inspectors’ in post, while in 2013/14 it was £532,032 with 12 ‘staff’ employed.85 For 2015/16, its budget was £0.5m.86 However by 2015, EASI said that its budget had doubled in 2014/15 and had been increased again in 2015/16 with a consequential increase in staff to nine inspectors.87 The position is different in respect of the HMRC. NMW enforcement resourcing through HMRC has steadily increased from £5.3m in 2005/6 to £9.2m in 2014/15.88 On 1 September 2015, it was announced that HMRC’s budget would increase further by £4.2m in 2016/17, taking its enforcement budget to £13.2m.89 C. Enforcement Policies and Practices Each of the four enforcement agencies under consideration has taken a different approach to enforcement, both as a matter of policy and practice. The enforcement action of some of these agencies is limited. There appears to be little joined up working between the agencies or with Tribunals. The Department for Business, Energy and Industrial Strategy (BEIS) policy on enforcement of the NMW by HMRC emphasises recovery of what is owed to individual workers. The policy states: ‘where a compliance officer discovers that the NMW has not been paid to a worker or group of workers, his aim is to ensure that workers receive what they are entitled to as soon as practicable’.90 The purpose of criminal offences is described as ensuring that payment of the NMW is taken seriously.91 Criminal prosecution is used in a selective and exemplary manner to ‘encourage and improve voluntary compliance’.92 Since October 2013, HMRC has operated a ‘naming and shaming’ scheme, publicly highlighting employers who have failed to pay their workers the NWM. Four hundred and ninety employers have been named so far.93 It is unclear whether naming and shaming has led to more employees recovering what they are owed. An emphasis in HMRC enforcement policy on recovering arrears more than criminal prosecution is reflected in the sums recovered from employers. In 2012–13, HMRC identified 736 employers who had failed to pay the NMW leading to the recovery of £3.9 million in unpaid wages for over 26,500 workers.94 In 2013-14, 1,455 investigations were undertaken and 652 financial penalties issued. This secured over £4.6m in wage arrears for over 22,000 workers.95 There were only two prosecutions for non-payment of the NMW between May 2010 and November 2014.96 In September 2015, it was announced that a new team of officers would be created specifically to ‘take forward criminal prosecutions for those who deliberately do not comply’ with NMW legislation. This may signal a change in direction of enforcement policy by HMRC in favour of greater criminal prosecution.97 Research by the (then) Department for Business, Innovation and Skills found little awareness among employers about the potential for inspection and enforcement by HMRC and no awareness of the potential for criminal proceedings.98 A similar emphasis is placed on non-criminal enforcement within EASI but enforcement action in practice has been more limited and variable over time. In March 2010, EASI published an ‘Enforcement Policy Statement’,99 in which it emphasised that compliance will typically be sought by issuing a warning letter and requesting rectification within a limited period. Similar to HMRC, EASI’s policy expressly notes that ‘the purpose of prosecution is condemnatory and a deterrent to others’.100 We have drawn on EASI’s Annual Reports from 2009 to 2013 to build a picture of EASI’s enforcement practices. The results of this documentary analysis are shown in Table 1. These data show that the majority of EASI’s enforcement activity occurs through sending warning letters. There have been very few prosecutions and prohibitions. The Government recently reported that there had been only nine prosecutions over two years (April 2013 and March 2015).101 The current list of individuals who are prohibited from running an employment agency stands at just 18.102 Table 1. EASI Enforcement Practices 2009–13 Period  Complaints received  Targeted/follow up inspections  Total infringements found  Warning letters sent  Monies recovered  Prosecutions  Prohibitions  2009/10  1,714  164  2,236  647  £204,000  1  2  2010/11  958  243  2,065  917  £295,010  1  8  2011/12  643  407  2,146  602  £128,523  3  0  2012/13  828  229  1,479  471  £169,184  7  2  Period  Complaints received  Targeted/follow up inspections  Total infringements found  Warning letters sent  Monies recovered  Prosecutions  Prohibitions  2009/10  1,714  164  2,236  647  £204,000  1  2  2010/11  958  243  2,065  917  £295,010  1  8  2011/12  643  407  2,146  602  £128,523  3  0  2012/13  828  229  1,479  471  £169,184  7  2  View Large Table 1. EASI Enforcement Practices 2009–13 Period  Complaints received  Targeted/follow up inspections  Total infringements found  Warning letters sent  Monies recovered  Prosecutions  Prohibitions  2009/10  1,714  164  2,236  647  £204,000  1  2  2010/11  958  243  2,065  917  £295,010  1  8  2011/12  643  407  2,146  602  £128,523  3  0  2012/13  828  229  1,479  471  £169,184  7  2  Period  Complaints received  Targeted/follow up inspections  Total infringements found  Warning letters sent  Monies recovered  Prosecutions  Prohibitions  2009/10  1,714  164  2,236  647  £204,000  1  2  2010/11  958  243  2,065  917  £295,010  1  8  2011/12  643  407  2,146  602  £128,523  3  0  2012/13  828  229  1,479  471  £169,184  7  2  View Large Information about the HSE’s enforcement practices is even more limited than information about EASI,103 with no breakdown of offences provided in the data on prosecutions.104 An examination of the Public Register of Notices concerning working time revealed just five entries over the last five years, of which two were duplicates. An examination of the historic register revealed two cases. No cases dealing with working time were found on the Prosecutions Register, although one reference was found to a prosecution in 2003 in a press report.105 There appears to be very limited enforcement of Working Time by the HSE with no, or virtually no, hard enforcement. Of all of the enforcement bodies, the Gangmasters’ Licensing Authority (GLA) was best known by employers and professional stakeholders. Though some agricultural businesses raised frustrations about the GLA not having sufficient resource to separate reliable intelligence from baseless allegation (such that competitor businesses could use the GLA as a tool against them), many praised the GLA’s work and the improvements that the Agency had brought to the food production and packaging sector. Since 2012, the GLA has moved its focus to cases where criminal activity is alleged.106 This is reflected in the GLA statistics relating to prosecutions and revocations, which are shown in Table 2.107 Table 2. GLA Prosecutions and Licence Revocations 2010–14 Year  S.12 Offence  S.13 Offence  S.18 Offence  Revocation— immediate effect  Revocation— no immediate effect  2010  14  4  1  1  31  2011  5  1  0  2  30  2012  12  3  0  1  15  2013  6  15  0  5  13  2014  4  1  0  1  15  Year  S.12 Offence  S.13 Offence  S.18 Offence  Revocation— immediate effect  Revocation— no immediate effect  2010  14  4  1  1  31  2011  5  1  0  2  30  2012  12  3  0  1  15  2013  6  15  0  5  13  2014  4  1  0  1  15  View Large Table 2. GLA Prosecutions and Licence Revocations 2010–14 Year  S.12 Offence  S.13 Offence  S.18 Offence  Revocation— immediate effect  Revocation— no immediate effect  2010  14  4  1  1  31  2011  5  1  0  2  30  2012  12  3  0  1  15  2013  6  15  0  5  13  2014  4  1  0  1  15  Year  S.12 Offence  S.13 Offence  S.18 Offence  Revocation— immediate effect  Revocation— no immediate effect  2010  14  4  1  1  31  2011  5  1  0  2  30  2012  12  3  0  1  15  2013  6  15  0  5  13  2014  4  1  0  1  15  View Large The data broadly show an increase in prosecutions and a significant reduction in the revocation of licenses. Further, the GLA—since its move to the Home Office—has been required to move its emphasis towards identifying ‘the most severe extremes of worker exploitation’, including trafficking of vulnerable people.108 While this is a legitimate policy choice for the government to make, it means that the individuals who are suffering from lower level denial of employment rights do not get the support they need. D. EU-8 Migrant Workers’ Knowledge and Experiences Beyond ETs We asked all of our interviewees about their knowledge and experiences of HMRC, the EASI, HSE and GLA. None of our migrant worker interviewees and few of our employer or advisor interviewees knew of the existence of these bodies. Of those few who had heard of these enforcement bodies, fewer understood what they did or how they might be involved practically in vindicating workers’ employment rights. Best understood by community advisors were the GLA and HMRC. We were able to obtain statistics about the number of referrals made to enforcement agencies by ACAS advisors through the general helpline between April and December 2015. The overwhelming majority of referrals were to HMRC (81.91%). Only 11.86% of referrals were to EASI, 5.62% to HSE and 0.61% to the GLA. We examined all available data about the enforcement practices of HMRC, the EASI, HSE and GLA to look for evidence about their interactions with EU-8 migrant workers. Data on GLA Appeal Tribunal cases were the only source we were able to access. Of 51 appeals, the nationality of the affected workers was referred to in just seven cases. Six out of these seven cases concerned EU-8 nationals. In addition to these six cases, the name of one agency run by the gangmaster suggested that it concerned EU-8 workers. There were also three appeals by gangmasters operating outside the UK; two in Poland and one in Lithuania. Two of these appeals give an insight into the important work of the GLA. In the first, Matt Job,109 the judgment describes that workers, primarily for agricultural jobs, were recruited through a Polish company, Inter Europe, and supplied to UK companies via an intermediary, Matt-Job. Workers were offered the option of other services being provided to them, in addition to finding them work, namely ‘transport and translation’. However, the appeal tribunal accepted that in reality, if these services were not accepted then the workers would not be offered any work. A similar picture emerges in the second case, UAB Top Job,110 where a Lithuanian-based recruitment agency supplied ‘clients’ to four gangmasters in the UK. They provided both ‘free-of-charge’ services, including finding an employer in the UK, and chargeable services such as translation and transport. Although said to be separable, the Appeal Tribunal held that in reality workers paid for a ‘package’ of both finding work and transport. The Appeal Tribunal also found that Top Job breached critical licence standards in relation to the safety of the transport provided since the journey involved driving for 36 hours with only a 90-minute break. The final aspect of our work on other enforcement bodies was exploring, in interview, the interactions between ETs and other enforcement bodies. Interviewees reported that there was little cooperation and interaction between them and we found limited evidence of joint working in relevant policy or other official documentation. 6. THE PROSPECTS FOR BETTER ENFORCEMENT OF LABOUR RIGHTS A. The LMEA Our exploration of enforcement bodies beyond ETs, which are less dependent upon the initiative of individual workers to take action, suggests that these bodies currently play a limited role in enforcement, focusing their efforts, in light of resource constraints, increasingly on the most egregious examples of exploitation that may trigger criminal law responses, including under the 2015 Modern Slavery Act. Knowledge of employment enforcement agencies’ roles and powers among advisers and workers is low. Save for the GLA, whose operation many people told us was unhelpfully limited to specific sectors, the work of employment enforcement bodies beyond Tribunals, seems to have little impact upon compliance. Will the creation of the new labour market enforcement agency (LMEA) help? The LMEA, headed up by a Director of Labour Market Enforcement, was established by the Immigration Act 2016. The LMEA coordinates and brings together HMRC, the EASI and GLA. The HSE has not been included.111 The aim for this new body is to address illegal immigration and ‘the businesses who exploit cheap labour from overseas’ which damage the labour market and ‘push down wages’ for others.112 The reform was also motivated by concerns about uncoordinated enforcement that can impose excessive burdens.113 How might this change to the employment landscape affect EU-8 migrant workers in the UK? We would suggest that some of the same confused thinking that we described at the start of this article persists. In the Government’s January 2016 response to the consultation about the new LMEA,114 a distinction is at first drawn between exploitation and deliberate non-compliance with labour standards. These ideas are later discussed interchangeably in terms of businesses struggling to ‘compete against rogue employers, distorting competition and reducing levels of employment over the longer term. Illegal levels of pay and conditions for exploited workers can depress or hold back pay and conditions more widely in the sector locally’. There is a lack of clarity about the problems that these new reforms are seeking to address. This seems likely to limit the positive effects that could result from this reform. Practically, the new LMEA seeks to make it easier to enforce labour rights and protect workers from exploitation. There are three particular features of the new enforcement model that seem especially pertinent to EU-8 migrant workers in light of our data. First, is the creation of a new post of Director of Labour Market Enforcement and Exploitation. This post has been created to ‘achieve a single set of priorities across enforcement bodies and more flexible allocation of resources’.115 The Director is responsible for setting the enforcement strategy and ensuring delivery of that strategy by the individual enforcement bodies. Individual enforcement agencies remain separate but the Director’s role is to enable better coordination and focus, ‘form[ing] a coherent view of the nature and extent of exploitation and non-compliance’.116 The second significant reform is to create a new offence of aggravated labour law breach where ‘employers deliberately, persistently and brazenly commit breaches of labour law and fail to take remedial action. Their pattern of exploitative behaviour neither meets the threshold for Modern Slavery offences […] nor can it be dealt with satisfactorily through repeated use of existing penalties or offences’.117 Despite broad support for this new offence in the consultation responses, following discussions with the Crown Prosecution Service around the difficulties in proving the necessary intention, the Government decided to move forward with a new type of improvement notice with a criminal offence of non-compliance rather than creating an offence involving an intention to deprive a worker of their rights. Although this represents a further example of the criminalisation of conduct of employers, it appears to be seeking to address the persistent but low-level breaches of employment rights with which many EU-8 migrant workers are concerned. The third aspect of the consultation relates to the expansion of the GLA’s remit. The Government’s view is that the GLA should be renamed and entirely reformed such that it becomes an Authority whose role is ‘in investigating regulatory breaches and criminal offences … wherever they affect employees and workers … in whatever sector they take place’.118 The work of the new Authority is to be as specified by the Director, based on a ‘dynamic assessment of the intelligence’ within the intelligence hub. This has not yet happened. The consultation and subsequent response suggests that the new Authority would ‘investigate breaches of the NMW/NLW, regulation of employment agencies, the proposed new aggravated labour market offence and other relevant criminal offences—where they are in connection with labour market exploitation’119 and seek to tackle ‘high harm, low volume cases of exploitation falling short of those tackled by the National Crime Agency’.120 However, the ACAS helpline would remain the point of contact for people to report ‘day-to-day’ infringements. While the increased coordination is to be welcomed, as is the expansion of the GLA’s remit, this represents a further example of the criminalisation of conduct of employers and fails to recognise the impact of frequent ‘day-to-day’ infringements, leaving this to the ACAS helpline and by implication, to the Tribunals.121 B. Alternatives for Reform Thus, while our data suggest that the LMEA reforms may have some promise to improve the enforcement of employment rights for EU-8 migrant workers, they add complexity to a system that is already experienced as impenetrably complex. There continues to be no single point of contact for workers who believe that they are being exploited or mistreated; the expanded role of the new GLA is muddled and overlapping with HMRC; and there has been no reconsideration of the appropriate balance between worker-led responses to mistreatment and proactive state-led monitoring and enforcement, or between criminal and civil law responses. The added complexity entailed by these reforms is also in stark contrast to the direction of reform to civil litigation and the civil court process. Lord Justice Briggs’ report of the Civil Court Structure Review emphasises the importance of improving the civil court system’s efficiency, flexibility and accessibility.122 He has recommended the creation of an Online Court to resolve claims worth up to £25,000 where the process would be automated, save where disputes had to be adjudicated.123 In his interim report, there was a suggestion of streamlining the civil courts system by, for example, incorporating the Tribunal system within the County Court structure.124 However, in the final report, he decided not to make any recommendations and to leave this question to others who were more qualified to propose detailed solutions. Streamlining is inadequately addressed in the recent employment enforcement reforms and there is a general lack of coordinated thinking between the employment and broader civil court context. Most significantly though, our findings suggest that a key piece of analysis is missing from these enforcement reforms, namely the social, practical and legal obstacles that migrant and similarly vulnerable domestic workers face when they try to enforce their rights. Although Lord Justice Briggs highlights the extensive work being done to support Litigants in Person, there is little recognition of the complexities involved in getting to a Tribunal in the first place and little exploration of the importance of enforcement mechanisms that are not solely worker-initiated, in light of those complexities and the fundamental powerlessness in the employment relationship of low paid and mostly unrepresented workers. As section 4 has shown, this problem is particularly acute in the case of (EU-8) migrant workers who do not bring claims, despite there being prima facie cases to answer. Many of these claims concern pay (unpaid wages or holiday pay). Importantly, although many EU-8 migrant workers perceive these claims to be complicated, they are not inherently complex claims: they are standard employment law problems that would be classified as ‘short track’ cases within the ET system, requiring minimal administrative and case management input. We have some practical suggestions about what might be done to address this enforcement gap to the benefit of both migrants (and national workers). First, there is a clear need for a single point of contact to which workers can go when they think they may have a straightforward claim relating to wages and holiday pay. This could be either through ACAS or through the Ombudsman that we suggest below. The point of contact needs to be low or no cost. It also needs to be accessible with very simple, multi-lingual, easily understood information and have strong, swift enforcement mechanisms. Enforcement mechanisms need to secure an individual remedy for the complainant as well as triggering broader investigation for systemic breaches through integrated working with other enforcement bodies including HMRC and the GLA. While improvements could be made to the current Tribunal system by, for example, simplifying the claim form, enabling judges to deal with some claims on the papers or by a more inquisitorial system,125 we consider that a more coherent and effective, albeit more radical, solution would be to create a Pay and Work Rights Ombudsman. The Financial Services Ombudsman (FSO) provides a helpful model. The FSO was set up by Parliament with specific statutory authority to determine consumer credit disputes by making an award for ‘such amount as the Ombudsman considers fair compensation for loss or damage’ and a ‘direction that the respondent take such steps in relation to the complainant as the ombudsman considers just and appropriate’.126 We see the benefits of creating an Ombudsman in these circumstances as 3-fold. First, complaining to such a body is likely to be less intimidating than making an application to the court. Second, an Ombudsman would be a single gateway for dealing with straightforward claims, and third, the ability to direct that a respondent take remedial steps would enable issues to be resolved across a business rather than on an individualised basis, thus helping to remove the focus on the individual complaints led model. The FSO’s work is tied explicitly into the work of the Financial Conduct Authority, such that both organisations are required to work together closely to ensure that their common functions are fulfilled effectively. Similarly, the work of a new employment Ombudsman could be strongly tied into the work of a single enforcement agency. A single enforcement agency, replacing the HMRC (for minimum wage enforcement), HSE, GLA and EASI would be preferable to the creation of the LMEA whose role is simply about better coordination. Further, following concerns raised by interviewees about the new enforcement agency’s role in relation to undocumented workers and its interaction with the Home Office, a single enforcement agency might operate more effectively if it were independent of the Home Office and focused solely on workers’ rights rather than immigration status. Thus, the combination of an independent Ombudsman working closely with a single enforcement agency that was only concerned with employment rights would represent a significant step towards filling the enforcement gap that we have identified. 7. CONCLUSIONS This article opened by recognising the multiple, and often inconsistent, narratives at play in the migration policy field: on the one hand, a narrative of exclusion that increases vulnerability by preventing migrants from accessing social security benefits and, on the other hand, a narrative of inclusion and protection through employment law and enforcement reform to give migrant workers rights and ensure that mistreatment is not left unchallenged. Our data suggest that EU-8 migrant workers perceive and experience the current enforcement landscape as exclusive and exclusionary. Many EU-8 workers bring with them from their home countries ideas about work, what constitutes mistreatment and appropriate responses to mistreatment. Many also have distinctive personal ambitions for their time in the UK that can conflict with regulatory protection. These imported experiences, beliefs, and ambitions can militate against individuals enforcing their employment rights at all. These twin factors are distinctive to (EU-8) migrant workers and perhaps explain the considerably reduced numbers in our data who go to Tribunal, and the data of others that indicates that non-UK-born workers are more likely to do nothing at all when faced with employment problems. Nevertheless, these two issues operate in addition to the practical and legal obstacles faced by many EU-8, and domestic, workers undertaking low-paid jobs in precarious employment contexts. For those who want to take action in the face of apparent mistreatment, the practical and legal obstacles to using ETs often prove insurmountable, making Tribunals unlikely forums in which migrant workers can vindicate their rights. This is despite evidence that Tribunal judges go to great lengths to ensure that migrant workers receive a fair hearing once they are through the doors. What emerges clearly from our data is an enforcement gap that needs to be plugged by readily enforced employment law: a gap comprised of cases of ‘everyday’ mistreatment at work (as opposed to modern slavery), and of workers (whether they are migrants or not) who are vulnerable within the Department for Trade and Industry’s 2006 definition as people who are at high risk of being denied their rights and who do not have the capacity or means to protect themselves. There has been too little joined up thinking about the combined effects on enforcement of the difficulties in accessing ETs, including the introduction of fees and cuts to local authority funding and the closures of free legal advice services that have resulted, and the legal environment that facilitates hyper-flexibility through the use of agency work and zero-hours contracts.127 To draw on Bridget Anderson’s language, we would argue that the role of the state in producing vulnerability has become ‘invisibilized’ in favour of its role as an apparent protector. As Anderson argues, ‘Rather than rescuing people because we know best, it might be better to regard migrants as sovereign selves who are driven, by state laws and practices, into excessive dependencies, on individuals who can thereby do them harm.’128 While the various enforcement bodies do help some of these workers there is still a considerable gap in protection for those EU-migrant workers (as well as non-EU workers and other vulnerable national workers). We have therefore suggested not only some simple reforms to the tribunal system but, more radically, the establishment of a Pay and Work Rights Ombudsman, as a one stop shop to deal with some of the more simple claims. This is no magic wand but this may be a practical step in the right direction. More fundamentally, our work points to a focus on job quality and job security. We concur with Bridget Anderson’s argument that ‘Concerns about the impact of immigration on “British workers” may ultimately be a conjuring trick, a masterpiece of public misdirection, when what merits attention are issues of job quality, job security and low pay.’129 We gratefully acknowledge funding for this project from the Cambridge Humanities Research Grants Scheme 2013/14, the support of the ESRC’s UK in a Changing Europe programme, and the work of the Faculty of Law’s Ethics Committee in granting our application for ethics approval. We also note with thanks the invaluable data collection assistance in Bury St Edmunds provided by Brogan Roache, Benjamin Mak and Emmeline Plews. 1 https://www.conservatives.com/manifesto (accessed 1 August 2017), p. 30. In fact, the UK’s new settlement deal produced the ‘emergency brake’; a watered down version of the four-year rule. 2 https://www.conservatives.com/manifesto (accessed 1 August 2017), p. 21, emphasis added. 3 From 28,000 between December 2013 and March 2014 to 53,000 between December 2014 and March 2015, with a trend in a continuing upward direction. Office for National Statistics, Migration Statistics Quarterly Report, August 2015, p.12: http://www.ons.gov.uk/ons/dcp171778_414818.pdf (date last accessed 1 August 2017). 4 From 75,000 between December 2011 and March 2012 to 116,000 between December 2014 and March 2015. Office for National Statistics, Migration Statistics Quarterly Report, August 2015, p.12: http://www.ons.gov.uk/ons/dcp171778_414818.pdf (date last accessed 1 August 2017). See also Migration Watch UK ‘The Outlook for EU Migration’ briefing paper MW 331, (23 June 2014), figures 2–4: http://www.migrationwatchuk.org/briefing-paper/331. Migration Watch believes that ‘at present immigration is neither sustainable nor well managed’: http://www.migrationwatchuk.org/about-us. See also the effect of short-term migration: https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/internationalmigration/articles/noteonthedifferencebetweennationalinsurancenumberregistrationsandtheestimateoflongterminternationalmigration/2016. 5 http://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/internationalmigration/bulletins/migrationstatisticsquarterlyreport/may2016#emigration-from-the-uk (accessed 1 August 2017). n. 4 at 5. 6 https://fullfact.org/immigration/do-eu-immigrants-contribute-134-every-1-they-receive/ (accessed 1 August 2017). 7 L. McDowell, A. Batzinsky and S. Dyer ‘Internationalization and the spaces of temporary labour: the global assembly of a local workforce’ (2008) 46 BJIR 750; J. May, J. Wills, K. Datta, Y. Evans, J. Herbert and C. McIlwaine, ‘Keeping London Working: global cities, the British state and London’s new migrant division of labour’ (2007) 32(2) Transactions of the Institute of British Geographers 151 at 159; and A. Stenning and S. Dawley, ‘Poles to Newcastle: grounding new migration flows in peripheral regions’, (2009) 16(3) European Urban and Regional Studies 273 at 283. 8 B. Anderson et al., ‘Fair enough? Central and East European Migrants in low wage employment in the UK’ (COMPAS 2007); S. Drinkwater, J. Eade and M. Garapich, ‘Poles apart? EU enlargement and the labour market outcomes of Immigrants in the UK’ (2009) 47(1) International Migration 16; and A. Stenning and S. Dawley, (2009) n. 7 above. 9 M. Sumption and W. Somerville, ‘The UK’s new Europeans, progress and challenges five years after accession’ (2010 EHRC report) at page 16. 10 A. Stenning and S. Dawley (2009), n. 7 above at 288. 11 M. Sumption and W. Somerville, (2010), n. 9 above, at 16. 12 S. Drinkwater, J. Eade and M. Garapich (2009), n. 8 above. 13 L.F. Vosko, ‘Less than adequate: regulating temporary agency work in the EU in the face of an internal market in services (2009) 2Cambridge Journal of Regions, Economy and Society 395–411 at 399 14 Precision Prospecting, Temporary workers in UK agriculture and horticulture: a study of employment practices in the agriculture and horticulture industry and collocated packhouse and primary food processing sectors (London: DEFRA, 2005). 15 For a helpful review see S. Currie, ‘Regular migrants in the irregular workplace: Central and Eastern European women in the UK after EU enlargement’ in (eds) H. Stalford, S. Currie and S. Velluti, Gender and Migration in 21st Century Europe (London: Ashgate, 2009), 107–130 at 112. 16 A. Stenning and S. Dawley (2009), n. 7 above, at 286. 17 See e.g. https://www.jrf.org.uk/report/experiences-forced-labour-uk-food-industry (accessed 1 August 2017). 18 C. Wirth Forsberg, ‘Mobile Citizens: Living the European Dream?’ DPhil Thesis submitted 2012. 19 S. Currie (2009), n. 15 above at 125. 20 Joseph Rowntree Foundation report ‘Central and East European migrants in low wage employment in the UK’, April 2006 https://www.jrf.org.uk/file/37162/download?token=xjVIcst6 (date last accessed 23 January 2017). 21 M. Okolski and J. Salt, ‘Polish emigration to the UK after 2004: why did so many come?’ UCL Migration Research Unit Discussion Paper, November 2014: http://www.geog.ucl.ac.uk/research/transnational-spaces/migration-research-unit/discussion-papers/MOJS%20revise%20041114_accept.pdf (accessed 1 August 2017). 22 http://lordashcroftpolls.com/2016/06/how-the-united-kingdom-voted-and-why/ (accessed 1 August 2017). 23 As the Economist notes, where foreign-born populations increased by more than 200% between 2001 and 2014, a Leave vote followed in 94% of cases: http://www.economist.com/news/britain/21701950-areas-lots-migrants-voted-mainly-remain-or-did-they-britains-immigration-paradox (accessed 1 August 2017). 24 Fn 21 at 125. 25 For a more detailed analysis of the various surveys and ensuing literature, see L. Barmes, Bullying and Behavioural Conflict at Work (Oxford: OUP, 2016), particularly at 11–37. 26 34% of respondents is noted in R. Fevre et al, ‘Fair Treatment at Work Report: Findings from the 2008 Survey’ BIS, September 2009 at 1 and 55. The figure is put at 32% in P. Pleasence and N. Balmer, ‘How people resolve “legal” problems’, Legal Services Board 2014 at 18. 27 40% of respondents in the previous five years in H. Genn, Paths to Justice (Oxford: Hart, 1999) at 42. 28 Genn (1999), n. 27 above at 42. Of the 6%, 41% of the problems were related to losing a job and 26% were concerned with changed terms and conditions. Only 12% related to getting pay or pension: this is strikingly different to our findings in relation to EU-8 migrant workers. 29 Fevre (2009), n. 26 above, at 55. 30 Pleasence (2014), n. 26 above, at 19. 31 The 2004 Civil Justice in England and Wales study put the figure at 10.5%, and the 2006–2009 surveys at 9.4%: P. Pleasence and N. Balmer, ‘Civil Justice in England and Wales 2009’, Legal Services Commission, 2010 at 49. The 2012 CSJPS saw no action being taken in 13.1% of situations (P. Pleasence and N. Balmer, (2014)), n. 26 above at 25. 32 See Genn (1999), n. 27 above, at 43 and Pleasence (2010), n. 31 above, at 53 respectively. 33 A. Pollert and A. Charlwood, ‘The vulnerable worker in Britain and problems at work’, (2009) 23(2) Work, Employment and Society 349. 34 Pleasence et al. (2010), n. 31 above, at 52. See similarly, Pleasence (2014), n. 26 above, at 38. 35 Pleasence (2014), n. 26 above, at 25. 36 Pollert (2009), n. 33 above, at 352. 37 Fevre (2009), n. 26 above, at 85 and 143. 38 C. Barnard and A. Ludlow ‘Enforcement of employment rights by EU-8 workers in Employment Tribunals’ (2016) 45(1) Industrial Law Journal 1. For analysis of EU-8 cases at Employment Appeal Tribunal level see C. Barnard ‘Enforcement of employment rights by migrant workers in the UK: the case of EU-8 Nationals’, in C. Costello and M. Freedland (eds), Migrants at Work (Oxford: OUP, 2014). 39 J. Holgate, ‘Organising migrant workers: a case study of working conditions and unionization at a sandwich factory in London’ (2005) 19(3) Employment and Society 463; D. Massey Spatial Divisions of Labour (London: Macmillan, 1995); and J. May, J. Wills, K. Datta, Y. Evans, J. Herbert and C. McIlwaine (2007), n. 7 above. 40 For example, S. Fredman, Making Equality More Effective: The Role of Proactive Measures (EU Gender Equality Network, 2009). 41 That we had greater success in accessing migrant workers through faith groups is consistent with other research that has highlighted the significance of faith communities for migrant workers in providing support through difficulties as well as material help. See e.g. K. Datta, C. McIlwaine, Y. Evans, J. Herbert, J. May and J. Wills, ‘From coping strategies to tactics: London’s low pay economy and migrant labour’ (2007) 45(2) British Journal of Industrial Relations at 404. 42 J. Eade, ‘Class and ethnicity: Polish migrant workers in London’ (2007) ESRC Full Research Report, RES-000-22-1294. 43 N. 42 above, at pages 10 and 11. A further study undertaken in 2010 of migration plans of EU-8 workers has found that money and work were the most commonly stated reasons for changes in migration plans, ‘with some migrants indicating that there was little else keeping them in the UK’. It also found that ‘migration strategies are, as shown, fluid and highly adaptive to shifting structural and individual conditions of which migrants’ are highly attuned to.’ S. Drinkwater and M. Garapich, ‘Migration strategies of Polish migrants: do they have any at all?’, (2015) 41 Journal of Ethnic and Migration Studies 1909. 44 M. Piore, Birds of Passage: Migrant Labour and Industrial Societies (Cambridge: CUP, 1979) at 64. 45 This is consistent with findings in J. Holgate, A. Pollert, J. Keles and L. Kumarappan, ‘Geographies of isolation: how workers (don’t) access support for problems at work’ (2011) 43(4) Antipode 1078. 46 Interestingly in a study in 2004, B. Anderson et al. found that EU-8 migrant workers were prepared to accept poor working conditions because the job they were doing was considered temporary, as opposed to necessarily their stay in the UK being temporary (2007, n. 8 above). They questioned whether this was particularly related to the sample group’s age and lack of dependents at that time. This accord with our interview data that as some EU-8 groups have remained in the UK and their life circumstances have changed, their view on the acceptable temporariness of their work has shifted. 47 C. Wirth Forsberg (2012), n. 18 above. 48 This is consistent with national data. See S. Altorjai, Over-qualification of immigrants in the UK, (Colchester: Institute for Social and Economic Research, University of Essex, 2013): https://www.iser.essex.ac.uk/research/publications/working-papers/iser/2013-11.pdf (accessed 1 August 2017). It is also consistent with other studies exploring EU-8 worker experience: B. Anderson, M. Ruhs and S. Spencer (2007), n. 8 above. 49 Fevre (2009), n. 26 above, at 118. This correlated with Pleasence’s finding that 25% of those experiencing employment problems had been dismissed or made redundant and a further 8% had resolved their problem by leaving their employer: Pleasence (2009), n. 33 above. 50 Pollert (2009), n. 33 above, at 353. 51 B. Anderson, ‘Precarious work, Immigration and Governance’ in C. Schierup et al., Migration, Precarity and Global Governance: Challenges and Opportunities for Labour (Oxford: OUP, 2015). 52 See for example, Dewhurst v CitySprint UK Ltd (ET/2202512/2016) and Aslam and Others v Uber B.V and others (ET/2202550/2015). 53 M. Sumption and W. Somerville (2010), n. 9 above. 54 This picture of migrant workers often being employed in national work groups is consistent with other research such as J. Wills, ‘The geography of union organising in low paid service industries in the UK: lessons from the T&Gs campaign to unionise the Dorchester hotel in London’ (2004) 37(1) Antipode 139 and J. Wills, Subcontracting, Labour and Trade Union Organisation: Lessons from Homerton Hospital and the London Living Wage Campaign (London: Queen Mary, University of London, 2006). 55 See similarly when discussing precarious work generally: B. Anderson, ‘Migration, immigration controls and the fashioning of precarious workers’ (2010) 24(2) Work, Employment and Society 300 at 304. 56 Pollert and Charlwood found similarly, that ‘workers were most strongly influenced by the advice of friends or colleagues (20%), followed by family and friends (16%).’ A. Pollert and A. Charlwood (2009), n. 33 above, at 350. 57 T. Wright and A. Pollert (2007) ‘The experience of ethnic minority workers in the hotel and catering industry: routes to support and advice on workplace problems’ ACAS research paper 03/06: http://www.acas.org.uk/media/pdf/0/b/03-06_1.pdf (accessed 1 August 2017). 58 For full report: http://www.vulnerableworkers.org.uk/files/CoVE_full_report.pdf (accessed 1 August 2017). See also M. Sumption and W. Somerville (2010), n. 9 above, at 28. 59 EU-8 workers who made use of CABx did not always find the help they needed. Specialist employment advice is not always available and few Bureaux offer support with representation in Tribunals. See N. Busby and M. McDermont, ‘Workers, marginalized voices and the Employment Tribunal system: some preliminary findings’ (2012) 41(2) Industrial Law Journal 166. 60 See, e.g., on the impact of cuts on community law centres: http://www.lawgazette.co.uk/analysis/features/law-centres-picking-up-the-pieces/5042728 (accessed 1 August 2017). fullarticle and more broadly. ‘Report of the Low Commission on the future of advice and legal support: tackling the advice deficit’, January 2014, Legal Action Group: http://www.lowcommission.org.uk/dyn/1389221772932/Low-Commission-Report-FINAL-VERSION.pdf. 61 The Trades Union Congress has gone to particular lengths. See, e.g., https://www.tuc.org.uk/free-training-polish-workers and http://www.pracawbrytanii.org/ (accessed 1 August 2017). 62 http://www.theguardian.com/business/2015/sep/20/hotel-cleaners-graphic-novel-unite- union-conditions (accessed 1 August 2017). 63 This is consistent with findings by A. Pollert and A. Charlwood (2009), n. 33 above, at 349. 64 See further Busby and McDermont, above, n. 59, and M. McDermont, S. Kirwan and A. Sales, ‘Poverty, social exclusion and the denial of rights to a fair hearing: a case study of employment disputes’ (2016) 24(1) Journal of Poverty and Social Justice 21. 65 See, e.g. A. Pollert and A. Charlwood (2009), n. 33 above, at 352. 66 Genn (1999), n. 27 above, at 43. 67 Department of Trade and Industry, ‘Success at work: protecting vulnerable workers, supporting good employers. A policy statement for this Parliament’, March 2006, at 25. 68 See, e.g., Balcikoniene v Governing Body of St Eugene de Mazenod Catholic Primary School and others 3304522/2010, judgment of 28 March 2011, [4–5] and Gorski v DSG Retail Limited 2603851/2011, judgment of 14 June 2012, [4–5]. We came across examples of Employment Tribunal application forms that had been presented—and accepted—notwithstanding their completion in an Eastern European language. Some interviewees described how, at times, experienced interpreters went beyond their formal role as ‘officers of the court’ by offering migrant worker claimants explanation and advice. 69 See, e.g., http://www.bristol.ac.uk/media-library/sites/law/documents/new-sites-publications/ Enforcement%20report_final.pdf (accessed 1 August 2017). 70 See e.g. s.14 National Minimum Wage Act 1998 and s.9 Employment Agencies Act 1973. 71 For example, the HSE enforce maximum weekly work, night work limits, health assessments for night workers, health of night workers, patterns of work and rest breaks for monotonous work, records of working patterns and compensatory rest. However, the HSE does not enforce other rights within the Working Time Regulations 1998, including time off, rest break entitlements or paid annual leave entitlements. 72 See e.g. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/ 418214/bis-14-621-national-minimum-wage-policy-on-hm-revenue-and-customs-enforcement-prosecutions-and-naming-employers-who-break-national-minimum-wage-law.pdf; http://www.hse.gov.uk/foi/internalops/ocs/001-099/1_6-apendices/app6.pdf; and http://web.bis.gov.uk/assets/biscore/employment-matters/docs/10-851-eas-inspectorate-enforcement-policy.pdf at para 10 (accessed 1 August 2017). 73 S.19A(1) National Minimum Wage Act 1998 as amended by the National Minimum Wage (Amendment) Regulations 2016. This is in addition to payment being pursued via the civil courts or the Employment Tribunal (s.19D(1)(c) and s.19D(1)(a) National Minimum Wage Act 1998). 74 S.3A Employment Agencies Act 1973. 75 S.31 National Minimum Wage Act 1998. 76 Reg.29(1) Working Time Regulations 1998. 77 S.6 Employment Agencies Act 1973. 78 S.12 Gangmasters (Licensing) Act 2004. It is also an offence under s.13 GLA 2004 to use an unlicensed gangmaster. 79 http://www.gla.gov.uk/Enforcement-and-Compliance/How-we-inspect-and-prosecute/ (accessed 1 August 2017). 80 Including powers of arrest (s.14), production, explanation and further information (s.16(1)(a)–(c)), powers of entry (s.16(1)(d)) and to obtain a warrant to enter premises and remove records and documents (s.17). Obstruction of a GLA enforcement officer constitutes a criminal offence (s.18). 81 The Gangmasters (Appeals) Regulations 2006. 82 http://www.hse.gov.uk/aboutus/strategiesandplans/businessplans/plan1516.pdf (accessed 1 August 2017). 83 It had total funding of £4m made up of the grant in aid (£1.4m) and £2.6m for enforcement activity under a separate service level agreement: ‘GLA moves to the Home Office’, 9 April 2014. www.gla.gov.uk (accessed 1 August 2017). 84 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/318841/Triennial_ReviewGangmastersLicensingAuthority.pdf (accessed 1 August 2017). 85 http://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2014-11-06/213790/ (accessed 1 August 2017). 86 http://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2015-10-13/11789 (accessed 1 August 2017). 87 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/471048/BIS-15-549-tackling-exploitation-in-the-labour-market.pdf (accessed 1 August 2017). 88 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/467388/foi-2015-16454-spend-on-national-minimum-wage-compliance.pdf (accessed 1 August 2017). 89 https://www.gov.uk/government/consultations/labour-market-exploitation-improving-enforcement; http://www.ft.com/cms/s/0/3b3d1970-798e-11e5-933d-efcdc3c11c89.html#axzz3r BIOFpkR (accessed 1 August 2017). 90 At para 2.2.3. 91 At 4.1.2. 92 At 4.2.1. 93 https://www.gov.uk/government/news/new-national-minimum-wage-offenders-named-and-shamed-february-2016 (accessed 1 August 2017). 94 https://www.gov.uk/government/news/national-minimum-wage-rogues-to-be-publicly-named-and-shamed-under-new-plans (accessed 1 August 2017). 95 https://www.gov.uk/government/news/hmrc-secures-record-46m-minimum-wage-arrears-for-underpaid-workers (accessed 1 August 2017). 96 http://www.theguardian.com/society/2014/nov/22/firms-minimum-wage-not-prosecuted (accessed 1 August 2017). 97 https://www.gov.uk/government/news/measures-to-ensure-people-receive-fair-pay-announced (accessed 1 August 2017). 98 Department for Business, Innovation and Skills, ‘Employment relations research series no.121: research into employers’ attitudes and behaviour towards compliance with UK NMW legislation’, October 2011. 99 http://web.bis.gov.uk/assets/biscore/employment-matters/docs/10-851-eas-inspectorate-enforcement-policy.pdf (accessed 1 August 2017). 100 At paragraph 10. 101 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/471048/BIS-15-549-tackling-exploitation-in-the-labour-market.pdf (accessed 1 August 2017). 102 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/403653/employment-agency-standards-inspectorate_prohibited_people_list__4_.pdf (accessed 1 August 2017). 103 http://www.hse.gov.uk/foi/internalops/ocs/001-099/1_6.htm#enforcement (accessed 1 August 2017). 104 http://www.hse.gov.uk/statistics/prosecutions.pdf (accessed 1 August 2017). 105 http://businessdatabase.indicator.co.uk/business_advice_directory/articles/news___working_time_regulations/first_hse_prosecution/UKTAHSAR_EU020101 (accessed 1 August 2017). 106 Written Ministerial Statement to Parliament 24 May 2012 and Report of the Triennial Review of the Gangmasters Licensing Authority, April 2014. 107 http://www.gla.gov.uk/Our-Impact/Revocations/ and http://www.gla.gov.uk/Our-Impact/Convictions/ (accessed 1 August 2017). 108 Above n. 45. 109 2011 Appeal 108/E/RV. 110 2011 Appeal 120/E/RV. 111 See now s.3 Immigration Act 2016. 112 https://www.gov.uk/government/speeches/pm-speech-on-immigration (accessed 1 August 2017). The link between the creation of the new agency and illegal immigration was repeated by Theresa May in the House of Commons on 28 May 2015, when she said its aim was ‘to crack down on the exploitation that fuels illegal immigration’. Hansard 28/05/15 column 211. 113 See e.g. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/ 52049/13-530-recruitment-sector-legislation-consultation-on-reforming-regulatory-framework.pdf with the Government response https://www.gov.uk/government/uploads/system/uploads/ attachment_data/file/212084/13-1021-reforming-the-regulatory-framework-for-the-recruitment-sector-government-response.pdf (accessed 1 August 2017). 114 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/491260/BIS-16-11-government-response-to-tackling-exploitation-in-the-labour-market.pdf (accessed 1 August 2017). 115 Para 66. 116 Para 71. 117 Para 90. 118 Para 109. 119 Para 114. 120 Para 116. 121 For further analysis of the LMEA, see A.C.L. Davies, ‘The Immigration Act 2016’ (2016) 45(3) Industrial Law Journal 431. 122 https://www.judiciary.gov.uk/publications/civil-courts-structure-review-final-report/ (accessed 1 August 2017) 123 Originally proposed by Richard Susskind and presented to the Master of the Rolls, in the ‘Online Dispute Resolution for Low Value Civil Claims’ report by the Online Dispute Resolution Advisory Group in February 2015. 124 https://www.judiciary.gov.uk/wp-content/uploads/2016/01/CCSR-interim-report-dec-15-final-31.pdf (accessed 1 August 2017). 125 On these points see the written evidence to Parliament by the President and Regional Employment Judges of the Employment Tribunals (England and Wales) at: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/justice-committee/courts-and-tribunals-fees-and-charges/written/21888.html and the Law Society Discussion Document for the consultation on tribunal fees at: www.lawsociety.org.uk/policy-campaigns/documents/making-ets-work-for-all-discussion-document/ (accessed 1 August 2017). Parallels could be drawn with the Money Claims Online system and the Accelerated Possession hearings in Rule 55 Civil Procedure Rules, whereby simplified, largely paper-based processes are used. 126 s229(2) Financial Services and Market Act 2000. 127 See e.g. Pulse Healthcare Ltd v Carewatch Care Services Ltd and Others (UKEAT/0123/12/BA) and Z. Adams and S. Deakin, Re-regulating Zero Hours Contracts (London: The Institute of Employment Rights, 2014). 128 B. Anderson ‘Where’s the harm in that? Immigration, enforcement, trafficking and the protection of migrants’ rights’ (2012) 56(9) American Behavioral Scientist 1241. 129 B. Anderson (2010), n. 55 above at 314. © Industrial Law Society; all rights reserved. For permissions, please e-mail: journals.permissions@oup.com.

Journal

Industrial Law JournalOxford University Press

Published: Sep 23, 2017

There are no references for this article.

You’re reading a free preview. Subscribe to read the entire article.


DeepDyve is your
personal research library

It’s your single place to instantly
discover and read the research
that matters to you.

Enjoy affordable access to
over 18 million articles from more than
15,000 peer-reviewed journals.

All for just $49/month

Explore the DeepDyve Library

Search

Query the DeepDyve database, plus search all of PubMed and Google Scholar seamlessly

Organize

Save any article or search result from DeepDyve, PubMed, and Google Scholar... all in one place.

Access

Get unlimited, online access to over 18 million full-text articles from more than 15,000 scientific journals.

Your journals are on DeepDyve

Read from thousands of the leading scholarly journals from SpringerNature, Elsevier, Wiley-Blackwell, Oxford University Press and more.

All the latest content is available, no embargo periods.

See the journals in your area

DeepDyve

Freelancer

DeepDyve

Pro

Price

FREE

$49/month
$360/year

Save searches from
Google Scholar,
PubMed

Create lists to
organize your research

Export lists, citations

Read DeepDyve articles

Abstract access only

Unlimited access to over
18 million full-text articles

Print

20 pages / month

PDF Discount

20% off