Modern Slavery: How care providers can protect workers and stay within the law

According to the UK government, modern slavery is defined as “a human rights violation and has severe consequences for the health and wellbeing of survivors. It is an exploitative crime that impacts on physical and mental health and has public health implications.”

The most recent data available from the Crown Prosecution Service (CPS) shows that for the year ending March 2023, 270 convictions were secured in cases involving modern slavery, with a further 113 prosecutions brought but not resulting in a conviction. A number of these were linked to the health and social care sector, which is experiencing an increase in demand for workers to meet the needs of an ageing UK population – a trend that is likely to continue for decades to come, making it even more important that care sector employers are aware of the latest anti-slavery legislation and what to look out for when filling vacancies.

This is especially important as workers from abroad are increasingly filling employment gaps in the care sector, a trend that has been particularly acute since the UK’s withdrawal from the European Union (EU) – after which it has become more common for workers from Africa and Asia to travel to the UK with corporate sponsorship to secure a Skilled Worker visa, limiting the work they can do to the health and care sector and, more specifically, care work and home care.

Over 40,000 such visas were issued in the UK in the year ending March 2023. Depending on the circumstances, the arrangements made between various stakeholders in the applicant’s home country and domestic jurisdictions can risk human trafficking, or other similar offences, being committed. Workers are often tempted to the UK by the promise of secure and comparatively lucrative employment and a fresh start. Many will sell their possessions at home to pay the high fees some charge to secure access to a UK visa. Once in the UK, workers can find themselves low on resources, vulnerable and dependent on others to navigate administrative processes and obtain valid identity documents to work, especially if a language barrier exists.

"Modern slavery is defined as a human rights violation and has severe consequences for the health and wellbeing of survivors. It is an exploitative crime that impacts on physical and mental health and has public health implications.”

Charity Unseen UK reports that potential victims of labour exploitation identified by its helpline have increased from 106 in 2021 to 708 in 2022. There has been an increase in activity in the care sector in particular.

Modern slavery considerations are also firmly on the radar of the Care Quality Commission (CQC). The body recently published a regulatory policy position in which it said it had updated its assessment framework to include modern slavery risks, particularly for recruitment processes and potential exploitation of sponsor licenses. The CQC made it clear it would make referrals to appropriate agencies if it identified concerns in a provider’s practices. It also indicated that it would use its own powers under the Health and Social Care Act 2008 to act against providers where safeguarding policies and procedures did not meet the challenges modern slavery presents.

What the law says

There are a number of international and domestic laws concerning human trafficking and slavery, servitude and forced or compulsory labour. The Modern Slavery Act 2015 (the Act) was designed with all of these in mind to tackle the problems they create. In summary, the Act:Consolidated and clarified existing offences and increased the penalties that could be imposed on guilty parties for these, including enabling the court to make reparation orders against offenders in favour of victims

• Provided for new civil preventative orders, "Slavery and Trafficking Prevention Orders" and "Slavery and Trafficking Risk Orders" (which can be made on interim or substantive bases)
• Introduced a defence for slavery or trafficking victims who would otherwise be guilty of an offence but were compelled to act as they did due to slavery or relevant exploitation and had no realistic alternative
• Placed a duty on various public bodies to notify the Secretary of State where they have reasonable grounds to believe a person may be a victim of slavery or human trafficking
• Created a new Independent Anti-Slavery Commissioner and new maritime enforcement powers
• Imposed obligations on qualifying businesses to disclose on an annual basis what activity they were undertaking to eliminate slavery and trafficking, not just from their own businesses, but importantly from their supply chains
• And placed a requirement on the Secretary of State to publish a paper on the role of the Gangmasters Licensing Authorit
  

Key offences

The Act provides for an offence of holding someone in slavery or servitude, or to require another person to perform forced or compulsory labour (SSFCL), when they know or ought to know that that person is being so held. The Act makes clear that the "consent" of the victim does not preclude a determination that the offence has taken place and that all the circumstances of the case are relevant to an assessment of whether an offence has been committed.

The Act also provides for an offence of human trafficking covering sexual and non-sexual exploitation. The offence is committed where a person arranges or facilitates the travel of another person with a view to them being exploited. In summary terms, exploitation is defined as SSFCL for:

• sexual exploitation
• removal of organs
• securing of services etc by force, threats or deception
• securing of services etc from children and vulnerable persons

It is important to note that the travel need not be international and can, in theory, cover even short distances within the same locality.

What amounts to slavery, servitude and forced or compulsory labour?

The Act provides that the terms are to be interpreted by reference to Article 4 of the European Convention on Human Rights. The relevant parts of Article 4 state that: "No-one shall be held in slavery or servitude" nor shall they "be required to perform forced or compulsory labour." The Article does not expand on what the words "slavery or servitude" mean, but it does explain what is not included in the term "forced or compulsory labour." Specifically excluded are:

• Works done in the course of detention;
• Military service;
• Services exacted in cases of emergencies threatening the life or well-being of the community;
• Any work or service which forms part of normal civic obligations.

In general, the words of the Convention must be interpreted in the light of the rules set out in the Vienna Convention of 1969 on the Law of Treaties: the effect of this is essentially that the words should be given their ordinary meaning, and in their context bearing in mind the object and purpose of the offence.

What do you need to do?

Section 54 of the Act requires qualifying commercial organisations to publish a slavery and human trafficking statement each year which sets out the steps it has taken to ensure there is no slavery or trafficking in its supply chains or its own business (or states that it has taken no such steps).

Currently an organisation qualifies if it is a body, corporation or partnership anywhere in the world with an annual turnover of more than £36 million, that supplies goods or services and carries on at least part of its business in the UK. The statement should be published on the organisation’s website homepage. The Act does not say what must be contained in the statement, nor does it require the organisation to take any action beyond preparation of the annual statement. In theory, an injunction could be obtained against a qualifying organisation forcing publication of such a statement. The primary driver in securing compliance is the desire to minimise doubt over the legality and ethicality of the business.

Addressing the corporate governance obligations associated with modern slavery is of critical importance, not just in straightforward business to consumer sales but in the wider legal and regulatory ecosystem, for example in more complex arrangements such as tender processes. Ultimately, the corporate consumer higher up the supply chain will be mindful of its own brand, obligations and risks in contracting for the supply of goods and services from the business in question.

Companies and individuals should ensure they are aware of modern slavery legislation to protect vulnerable individuals and tackle this violation of human rights. Global issues relating to war, climate change, the COVID 19 pandemic and poverty/economic conditions are raising risk factors and heightening the risk of enslavement. The United Nations has made it clear that slavery is not confined to poor countries far from the Western World and we are seeing an increase in the number of investigations into organisations that do not have robust due diligence and compliance processes. Collectively, enforcement agencies have made it clear that promises and statements of good intent are no longer enough.