Unsurprisingly migrant numbers are dominating the headlines at a time when political parties sabre-rattle policies in the run up to next year’s general election. This includes the often controversial subject of migrant workers.
It has been shown that many employers benefit from the influx of migrant workers as they have filled many gaps in the market for both low paid vacancies and non-skilled vacancies. Commercial and industrial sectors such as agriculture, food processing, construction, healthcare, hospitality, catering, contract cleaning, and warehousing are traditional routes of employment for migrant workers. These are roles where concerns of employee safety are often higher than average, rather than in the higher paid skilled roles such as in IT, Finance and NHS.
Any migrant working in the UK, whether legal or not, is entitled to the same protection under the health and safety laws as any other worker.
Companies producing risk assessments must take account of the needs of non-UK nationals, in particular with issues such as:
- language barriers: not all migrants speak English, some can speak it but not read it
- basic competencies including literacy, numeracy, physical attributes, general health, relevant work experience etc.
- cultural attitudes that could adversely affect health and safety management culture (e.g. risk-taking behaviours and not reporting incidents for fear of losing their jobs); and
- the compatibility/equivalence (if any) of vocational qualifications e.g. lift truck driving qualifications obtained abroad.
Employers must ensure that all employees understand the content of the health and safety information, training and instruction, as well as monitor that it is being followed. This can be achieved by visual, non-verbal methods such as pictures or signs or learning materials such as videos/DVDs/CD-ROMs, which can be provided or supported in multiple languages. It may be acceptable to use the services of existing bilingual or multilingual employees to translate simple, non-technical information, instruction or training materials. However for more complex and technical training requirements, it is advisable to use the services of accredited translators.
Significantly the level of knowledge of health and safety law and its application to migrant employees supplied by employment agencies, and other labour suppliers such as gang masters, causes much confusion. There is no straight answer to the question “who is actually responsible for the health and safety of temporary and migrant workers?” However, where an employer uses a labour supplier for temporary or migrant workers then both parties have shared responsibilities under the Management of Health and Safety Regulations 1999 to protect these workers.
In the majority of cases the nature of the relationship between the labour provider and employer – and who controls and directs the work activity and the circumstances under which the work is being carried out – will mean that it is usually the employer who has the responsibility under current health and safety legislation. There will always be the exception. Therefore to avoid any misunderstanding and confusion, there should be a written contract or service agreement between the employer and labour provider to clarify the respective responsibilities for health and safety and the practical day to day management, supervision, direction and control of the workers.
On a final note there is always confusion with regards to the provision of personal protective equipment (PPE) for agency and temporary workers. The HSE have answered this issue with the following statement:
“a temporary worker in an explicit or implied employment relationship with either an agency, a user business, or both, may not be charged for personal protective equipment provided to meet health and safety requirements, whether by the employment business or client hirer. Nor may a refundable deposit be charged against non-return of the equipment. However, it will be lawful to make a deduction from final wages if the equipment is not returned on termination of the employment for which it was issued, provided this is made clear in the contract with the worker”.
Failure to provide PPE, failure to maintain it or replace it, or even provide unsuitable PPE for the task may result in an improvement notice being served by the visiting Health and Safety Inspector from either Local Authority or HSE, depending on the risk gap.