Modern Slavery and the Forces of Neoliberal Globalisation

 

 

Despite the introduction of the Modern Slavery Act 2015, it is estimated that slavery, or forced labour, affects at least 3,000 to 5,000 people across the UK.[1] Charting the legal developments in protection for migrant domestic workers, this post suggests that the current legal framework is inadequate, failing to provide the promised ‘radically new, comprehensive approach’.[2] Under this framework, ‘slavery’, an inherently illiberal concept, is not only tolerated but also facilitated. Rather than leading to the ‘eradication of modern slavery’,[3] it will be shown how the UK’s legal framework plays a central role in constructing the conditions in which forced labour can flourish.[4] It is argued that the UK’s unjust framework is the product of forces of globalisation and neoliberalism, which have wrought tensions and contradictions into the social and legal fabric of employment relationships. Tensions, contradictions and resulting injustices are set to rise in an economy where women increasingly participate in the external labour market and, correspondingly, there is a greater need for (mostly female) domestic migrant workers.[5] Yet, it is also suggested that the increasingly protective stance taken by the judiciary in relation to migrant domestic workers may have the potential to overcome some of the injustices created by the UK’s legislative framework, providing a valuable liberal corrective to an illiberal neoliberal logic.

 

First, it is important to understand why migrant domestic workers are a section of the labour market particularly vulnerable to forced labour conditions. Many have suggested that their vulnerability arises from the ‘precarity’ of their employment situation,[6] which has gone hand in hand with globalisation and neoliberal market forces.[7] Connections between global economic change and the employment market form a key explanatory framework for workplace exploitation. An important backdrop is the erosion of the political and industrial power of the working class following the global capitalist crisis in the 1970s. The crisis opened the door to the dominant assertion of neoliberal ideas and policies across the world, the primary goal of which has been to retrench labour markets on the basis of flexibility and restore the conditions for profitable growth.[8] In this context, migrant domestic workers are best characterised as ‘hyper-precarious’ since, by overcoming various immigration requirements and facing serious financial pressures, they are at risk of entering the labour market at the lowest possible point in their effort to secure work.[9] Accordingly, the idea of hyper-precarity overlaps with Philips’ argument of ‘adverse incorporation’.[10] In this line of thought, vulnerability results not only from conditions of exclusion, but also from the adverse terms on which some workers are incorporated into labour markets and relations. For example, beyond visa restrictions, migrant domestic workers have limited access to welfare benefits, alongside barriers of limited language skills and non-recognition of qualifications awarded in other countries. Thus, the migrant domestic worker is in a peculiarly vulnerable position where there is an on-going interplay between neoliberal labour markets and highly restrictive immigration regimes.

 

In the UK, neoliberal market logic has manifested in the legislative framework, which is reflected by the ‘legislative precariousness’ of migrant domestic workers.[11] At present, for example, migrant domestic workers are excluded from many statutory rights, such as: the Working Time Regulations;[12] placed outside the scope of health and safety legislation;[13] can be paid less than the minimum wage when they receive accommodation;[14] and, if treated as a family member, domestic workers are exempted from the 1998 National Minimum Wage Act altogether (notably, they have no right to not suffer unfair dismissal or ‘other detriment’).[15] The last statutory exclusion reveals an unsettling irony. Treating the domestic worker as a family member – and not a worker – signals a false assumption that this more ‘intimate’ relationship is deserving of fewer protections and rights available to the worker. In fact, the opposite is true, as the ‘hyper-precarity’ of migrant domestic workers means that many of these workers are subject to exploitative working conditions and abuse. This is evident in the research conducted by Kalayaan, which found that the majority of migrant domestic workers work for over 16 hours a day.[16]

 

On a broader societal level, the legislative precariousness of domestic workers exposes tensions and contradictions in feminist thought. John Stuart Mill drew an analogy between the law’s treatment of women in the nineteenth century and slavery, partly because women had no right to work outside the home.[17] Today, many women participate in the external labour market, implying a significant step towards female emancipation and gender equality. Yet, to realise those ambitions, women must employ other, often migrant women, creating a vulnerable female underclass and presenting an impasse in the feminist project.[18] Therefore, whilst domestic workers provide significant distributive effects throughout most of society, the legislative precariousness of their position creates a ‘negative exceptionalism’, where any distributive effects are rendered inequitable due to the exclusion of domestic workers from protective legislation.[19] The net effect is a two-tier labour market with two contrasting sets of characteristics. On the top tier, there are ‘high wages, good working conditions, employment stability, chances of advancement, equity, and due process in the administration of work rules’; whereas, on the bottom tier, there are ‘low wages and fringe benefits, poor working conditions, high labor turnover, little chance of advancement, and often arbitrary, capricious supervision’.[20] The UK provides a key example of the ways in which pressure to join the workforce has led to no general reform of labour protections, but rather the creation of an expedient secondary peripheral and precarious workforce.[21]

 

Fundamentally, legislative precariousness has largely resulted from the unique working conditions of domestic workers – ‘work like no other’.[22] Working in the private household of the employer, where the employer’s house is often the worker’s home,[23] the domestic worker becomes a key figure in the everyday functioning of the family. The intimacy that often characterises the relationship between the employer and the domestic worker makes the latter seem like a family member – not a worker.[24] However, the prophylactic effect of intimacy is misplaced since the relationship between the employer and the domestic worker is also often characterised by a difference in status and bargaining power that the employer is keen to maintain.[25] The private realm of domestic work is thus difficult to regulate, which generally means that domestic workers are under-unionised.[26] As such, the context of employment sets up the preconditions for an abusive relationship,[27] which is exacerbated by the Government policies such as the UK’s domestic workers visa regime.[28] Under the previous visa regime (since 2012), migrant domestic workers’ visas were tied to their employer, so that leaving the employer meant leaving the country. Virginia Mantouvalou documents how this left abused domestic workers with an unpalatable choice: stay and continue to provide for family and home (if monies paid); leave and return home to own country (but potential source of income lost); or leave and stay illegally (but vulnerable to expulsion).[29]

 

Since then, the Immigration Act 2016 has reformed the visa regime for domestic workers. Mostly notably, domestic workers are no longer tied to their employers per se. However, the reality is that the bond is still strong, as is apparent under the Immigration Act’s procedural limitations. Firstly, under the Immigration Rules, the domestic worker can find a new employer but has to do so within the six-month period of their initial visa.[30] Ignoring James Ewins QC’s recommendation that extensions should total two and a half years, the current limit is likely to be problematic, as it gives workers limited time to find a new employer or obtain the appropriate references.[31] The attractiveness of a domestic worker to a new employer is also questionable where there is limited time left on their visa.[32] Secondly, for domestic workers seeking to remain as a victim of slavery or human trafficking under paragraph 159J of the Rules, their stay can be granted for up to two years but on the basis that the victim will have no access to public funds (no unemployment benefits).[33] In addition, individuals are restricted to employment as a domestic worker in a private household or a private servant in a diplomatic household.[34] Kalayaan rightfully observe how this arrangement leaves the domestic worker trapped in the same kind of employment that led to their abuse, rendering a precarious catch-22 scenario.[35] Again, this reflects the inescapable tensions produced by a legal system that is trapped by its own illiberal logic.

 

At the forefront of this constrained legal thought is the Modern Slavery Act 2015 (MSA), which attempts to provide greater protections for victims of forced labour. Introduced, arguably, only because of the UK’s positive obligation to prosecute traffickers under EU law,[36] Cathryn Costello criticises the criminal law approach taken as an ineffective remedy for human rights regulations, especially when we consider the risk that states will ignore other obligations towards victims.[37] Indeed, a brief read of the MSA’s provisions reveal that the principal aim is criminalisation of activities rather than compensation of victims. Instead of focussing on ‘evil traffickers’,[38] the Government’s toleration of slavery has resulted from failing to provide domestic workers with meaningful, enforceable labour and human rights.

 

On a semantic level, the MSA’s ability to protect domestic worker from abusive employment relationships is hindered by how labour relations, conditions, exploitation and, above all, coercion are conceptualised and discursively represented through binaries such as unfree/free or forced/voluntary labour.[39] Forced labour is best understood not as a binary concept but as a ‘continuum of experiences’ in which precarious workers can quickly deteriorate into victims of forced labour and slavery.[40] For example, the recently ratified International Labour Organisation (ILO) Protocol explains that true protection requires ‘addressing the root causes’ of forced labour,[41] which an accompanying recommendation provides should be achieved by extending employment law to ‘all sections of the economy’ (including within households).[42] Yet, a fundamental failure of the UK’s legislative regime is its reluctance to recognise that the key to preventing forced labour lies with universally conceived labour rights – ‘work like any other’.[43] Significantly, the UK Government has also not ratified the ILO Convention on Domestic Workers (2011),[44] which calls into question the Government’s commitments concerning protection for the group.[45] Reaping the benefits of a globalised workforce, it is argued that the UK should retain a global perspective that looks beyond its own borders to interrogate how transnational social statuses and livelihood pressures contribute to the necessity to engage in forced labour.[46] Recent developments in European human rights law, which protects not only civil and political rights,[47] but also social and economic rights,[48] and which has also paid attention to the vulnerability of irregularity of migrant workers,[49] demand that the unfair advantage gained by employers is addressed. By taking a ‘continuum’ approach, the UK legislative framework may properly conceptualise the multidimensional constraints that combine to structure domestic workers’ entry and continuation into forced labour situations.

 

The failings of the UK’s legislative framework and the dubious intentions of government policymakers have garnered the attention of the UK courts. Recent developments in case law show that the judiciary are adopting a more protective stance in relation to migrant domestic workers that has given greater weight to their legal rights and social status. In the UK, developments have mainly centred on the doctrine of illegality. Acting as a defence to a civil claim, the doctrine is based on two broad policy reasons: first, a person should not be allowed to profit from his or her wrongdoing and, second, the law should be coherent and not self-defeating, condoning illegality by giving with the left hand what it takes from the right.[50] Arguably, the binary nature of the UK’s visa regime manufactures problems of illegality for migrant domestic workers.[51] This may arise where it can be shown that one or more of the following situations are present: deliberative illegal entry into the country; inability to prove lawful entry (employer holds passport/managed entry); overstaying the domestic worker visa; and/or working without permission for another employer. However, the locus of judicial inquiry has shifted from the formal relationship between the employer and the migrant domestic worker towards broader policy considerations affecting that relationship. The shifting approach to the doctrine of illegality has shown positive signs of development for the protection of migrant domestic workers.

 

Traditionally, the UK courts have taken a strict approach to the doctrine of illegality.[52] In Zarkasi v Anandita,[53] the Court of Appeal referred to Lord Mansfield’s emphatic judgement in Holman v Johnson:[54] ‘No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act’. Under this regime, a domestic worker who is illegally working in any way will only find judicial protection under ‘quite extreme circumstances’.[55] For the Indonesian claimant in Zarkasi, sleeping on the sofa whilst being paid £30 per week was held to not satisfy this threshold. The approach taken appears to suffer from a myopic tendency to ignore the hand that the court is effectively giving to the immoral actions of the employer. In light of the broad policy considerations behind Lord Mansfield’s maxim, judges should broaden their judicial gaze by recognising a continuum of illegality to avoid bringing the law into disrepute.

 

And to some extent, they have. The courts have recently developed a more protective stance to help vulnerable workers in a bid to save their role in achieving justice. In Hounga v Allen,[56] Ms. Hounga, an undocumented migrant domestic worker, was promised a better life and education, only to find herself receiving neither and instead subjected to serious physical abuse and threatened with prison should she leave the house and be discovered by police. Rather than applying a strict ex turpi causa approach to illegality,[57] the Supreme Court took a ‘structured discretion’ approach, where public policy operates to secure rather than defeat liability.[58] According to Lord Wilson, the countervailing public policy in Hounga was the legal protection of victims of trafficking.[59] On one analysis, the narrow focus on the trafficking angle as the basis of Lord Wilson’s broader approach is perhaps troubling, by ignoring the multiplicity of ways in which non-trafficked migrant workers are rendered precarious by socio-economic vulnerability compounded by the norms of migration law and the common law.[60] On another analysis, however, Lord Wilson’s speech contains ‘the germ of a radical revision’ of the law on illegality, especially in its potential to make international human rights law central in common law on public policy.[61] Like the European Court’s ‘integrated approach to interpretation’ in Siliadin v France,[62] Lord Wilson’s judgement took relevant international law into account (e.g. ILO Conventions),[63] thus vindicating, by implication, universally conceived labour rights and protections.

 

The broader public interest approach adopted by the Supreme court in Houga has more recently appeared in Patel v Mirza in which the stark refusal to enable claims in contract was reconsidered.[64] In this case, Mr. Patel gave Mr. Mirza £620,000 to place bets on a bank’s share prices with the benefit of insider information. Although this was not an employment case (it involved an agreement to engage in insider dealing), the claimant succeeded in an action for restitution of monies paid that would return the parties to their original position prior to conclusion of the illegal contract. Applying a multi-factorial public interest test, Lord Toulson rightfully noted that the public interest is best served by a principled and transparent assessment of the considerations identified, rather than by the application of a formal approach capable of producing results that may appear arbitrary, unjust or disproportionate.[65] Furthermore, Lord Toulson’s judgement suggests that illegality is treated in similar ways in both contract and tort.[66] We may wonder whether Mirza has the same compelling public policy base as that for domestic workers, like Ms. Hounga. Indeed, future courts may find that the decision went too far in this respect. Nonetheless, it demonstrates a willingness from the courts to protect (illegal) domestic workers from the draconian decisions imposed by the doctrine of illegality.

 

Focussing on the interplay between global economic changes and domestic legislative frameworks, it has been argued that the UK has failed to protect the labour and human rights of domestic workers. Forces of neoliberal globalisation have arguably liberalised the labour market for society at large, but they have also influenced a legislative framework that is systemically illiberal, where slavery is not only ‘tolerated’ but also facilitated. Yet, the protective stance increasingly adopted by the UK courts in this context, characterised by a more holistic assessment of harms to domestic workers, may offer a valuable corrective to an unjust neoliberal logic, reconciling the tensions and contradictions that are currently dividing society and pulling the legal system apart.

 

 

[1] See, e.g., Frank Soodeen, ‘Why the Modern Slavery Bill still needs more clout’, Joseph Rowntree Foundation (21st November 2014), available at: https://www.jrf.org.uk/blog/why-modern-slavery-bill-still-needs-more-clout.

[2] Theresa May, ‘My Government will lead the way in defeating modern slavery’, Telegraph Online (30th July 2016), available at: http://www.telegraph.co.uk/news/2016/07/30/we-will-lead-the-way-in-defeating-modern-slavery/.

[3] Ibid.

[4] Lewis et. al, ‘Hyper-precarious lives: Migrants, work and forced labour in the Global North’, Progress in Human Geography 39(5): 580-600 (2015), 590; Virginia Mantouvalou, ‘‘Am I Free Now?’ Overseas Domestic Workers in Slavery’, 42 Journal of Law and Society 329 (2015), 330.

[5] See International Labour Organisation (ILO), Decent Work for Domestic Workers, Report No. IV(1) ILC 99th Session (Geneva, International Labour Office 2010), 6, 9; Einit Albin and Virginia Mantouvalou, ‘The ILO Convention on Domestic Workers: From the Shadows to the Light’, 41 Industrial Law Journal 67, 68; Tonia Novitz and Philip Syrpis, ‘The Place of Domestic Work in Europe: An Analysis of Current Policy in the light of the Council Decision Authorising Member States to Ratify ILO Convention No. 109’, 6 European Labour Law Journal 104 (2014).

[6] See, e.g., Montouvalou (n. 4); Albin and Montouvalou, (n. 5).

[7] Lewis et. al (n. 4), 581.

[8] David Harvey, A Brief History of Neoliberalism (Oxford, Oxford University Press 2005).

[9] Lewis et. al (n. 4), Lewis et. al, Precarious Lives: Experiences of Forced Labour among Refugees and Asylum Seekers in England (Leeds, Leeds University Press 2013); Lewis et. al, Precarious Lives: Force Labour, Exploitation and Asylum (Bristol, The Policy Press 2014).

[10] Nicola Philips, ‘Unfree labour and adverse incorporation in the global economy: Comparative perspectives on Brazil and India’, Economy and Society: 42(2): 171-196 (2013).

[11] Virginia Mantouvalou, ‘Human Rights for Precarious Workers: The Legislative Precariousness of Domestic Workers’, 34 Comparative Labor Law and Policy Journal 
133 (2012).

[12] Working Time Regulations, Reg. 19.

[13] Health and Safety at Work Act 1974, s. 51.

[14] National Minimum Wage Regulations 1999, Regs. 36 and 37; National Minimum Wage act 1998, ss. 23-26.

[15] Ibid., Regs. 2(2) and 2(3); Nambalat v Taher & Anor; Udin v Pasha & Ors [2012] EWCA Civ 1249.

[16] Kalayaan, ‘Slavery by another name: the tied migrant domestic worker visa’ (May 2013), available at: http://www.kalayaan.org.uk/documents/Slavery%20by%20a%20new%20name-%20Briefing%207.5.13.pdf.

[17] John Stuart Mill, The Subjection of Women (1869).

[18] Maria Galotti, The Gender Discrimination of Domestic Workers in Western Europe (ILO, 2009), 5; Novitz and Syrpis (n. 5), 105-106; Mantouvalou (n. 4), 332.

[19] Hila Shamir, ‘Between Work and Home: Assessing the Distributive Effects of Employment Law in Markets of Care’, 30 Berkeley Journal of Employment and Labor Law 404 (2009), 446.

[20] Peter B. Doeringer and Michael M. E. Piore, International Labor Market and Manpower Analysis (1971), 165.

[21] Sandra Fredman, ‘Women at Work: The Broken Promise of Flexicurity’, 33(4) Industrial Law Journal 299 (2004).

[22] ILO, Decent Work for Domestic Workers: Report IV(1) (Geneva, International Labour Office 2009), 12–14.

[23] See Kalayaan (n. 16).

[24] Albin and Mantouvalou (n. 5), 68.

[25] Ibid.

[26] Dierdre McCann and Jill Murray, ‘Prompting Formalisation through Labour Market Regulation: A Framed Flexibility Model for Domestic Work’, 43 Industrial Law Journal 319 (2014); Bridget Anderson, ‘Mobilizing Migrants, Making Citizens: Migrant Domestic Workers as Political Agents’ 33 Ethnic and Racial Studies 60 
(2010); Einit Albin and Virginia Mantouvalou, ‘Active Industrial Citizenship of Domestic Workers: Lessons Learned from Unionising Attempts in Israel and the UK’ 17 Theoretical Inquiries in Law 
321 (2016).

[27] Albin and Mantouvalou (n. 5), 69.

[28] Cathryn Costello, ‘Migrants and Forced Labour: A Labour Law Response’, in ‘Migrants and Forced Labour: A Labour Law Response’ in Alan Bogg, Cathryn Costello, Anne Davies, Jeremias Prassl (eds), The Autonomy of Labour Law (Oxford, Hart Publishing 2015); Judy Fudge and Kendra Strauss, ‘Migrants, Unfree Labour, and the Legal Construction of Domestic Servitude: Migrant Domestic Workers in the UK’, in Cathryn Costello and Mark Freedland (eds), Migrants at Work: Immigration and Vulnerability in Labour Law (Oxford, Oxford University Press 2014); Virginia Mantouvalou, ‘What Is to Be Done for Migrant Domestic Workers?’, in Bernard Ryan (ed.), Labour Migration in Hard Times (2013).

[29] Mantouvalou (n. 4).

[30] Immigration Rules, para.159EA.

[31] James Ewins, Independent Review of the Overseas Domestic Workers Visa (16th December 2015), paras 99-106 available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file /486532/ODWV_Review_-_Final_Report__6_11_15_.pdf.

[32] Ibid., para. 105.

[33] Immigration Rules, para. 159J.

[34] Immigration Rules, para. 159I.

[35] Kalayaan, ‘Overseas Domestic Workers left in the dark by the Immigration act 2016’ (28th June 2016), available at: http://www.kalayaan.org.uk/news/overseas-domestic-workers-left-in-the-dark-by-the-immigration-act-2016-2/.

[36] Siliadin v France [2004] 43 EHRR 16, 73316/01; Holly Cullen, ‘Siliadin v France: Positive obligations under Article 4 of the European Convention on Human Rights’, 6 Human Rights Law Review 585 (2006).

[37] Costello (n. 28).

[38] Bridget Anderson and Rutvica Andrijasevic, ‘Sex, slaves and citizens: the politics of anti-trafficking’, 40 Soundings 135, 137.

[39] Julia O’Connell Davidson, ‘New slavery, old binaries: Human trafficking and the borders of ‘freedom’’, Global Networks 10(2): 244–261 (2010); John O’Neill, Varieties of Unfreedom (Manchester, University of Manchester Press 2011); Lewis et. al (n. 4), 586-588.

[40] Klara Skrivankova, ‘Between decent work and forced labour: examining the continuum of exploitation’, Joseph Rowntree Foundation programme paper: Forced Labour (2010), available at: http://www.gla.gov.uk/media/1585/jrf-between-decent-work-and-forced-labour.pdf.

[41] P029 – Protocol of 2014 to the Forced Labour Convention, 1930: Protocol of 2014 to the Forced Labour Convention (Entry into force: 9th November 2016), Art. 2(f).

[42] R203 – Forced Labour (Supplementary Measures) Recommendation, 2014 (No. 203): Recommendation on supplementary measures for the effective suppression of forced labour; Ibid., Art. 2(e).

[43] ILO (n. 22); See Virginia Mantouvalou, ‘In Support of Legalisation’, in Conor Gearty and Virginia Mantovalou (eds), Debating Social Rights (Oxford, Hart Publishing 2011), 85.

[44] C189 – Domestic Workers Convention, 2011 (No. 189): Convention concerning decent work for domestic workers (Entry into force: 5th September 2013).

[45] Einit and Mantavalou (n. 5), 77-78.

[46] Lewis et. al (n. 4), 595.

[47] 1950 European Convention on Human Rights (ECHR).

[48] 1961 European Social Charter (ESC); 2000 EU Charter of Fundamental Rights, incorporated in the 2009 Treaty of Lisbon.

[49] See Mantouvalou (n. 11), 146-158.

[50] See Patel v Mirza [2016] UKSC 42, 99.

[51] Bridget Anderson, ‘Migration, Immigration Controls and the Fashioning of Precarious Workers’, Work, Employment and Society 24(2): 300-317 (2010).

[52] See Hall v Woolston Hall Leisure Ltd [2001] ICR 99.

[53] Zarkasi v Anandita [2012] ICR 788.

[54] Holman v Johnson (1775) 1 Cowp 341, 343.

[55] Hall (n. 52), 79.

[56] Hounga v Allen & Anor [2014] UKSC 47.

[57] See, e.g., Vakante v Governing Body of Addey and Stanhope School (No. 2) [2014] ICR 279.

[58] See Mirza (n. 50), 103 (‘Hounga v Allen…[is a case] in which there were countervailing public interest considerations, which needed to be balanced’.).

[59] Hounga (n. 56), 52.

[60] Alan Bogg and Sarah Green, ‘Rights Are Not Just for the Virtuous: What Hounga Means for the Illegality Defence in Discrimination Torts’, 44 Industrial Law Journal 101, 122; Lewis et. al (n. 4), 590-592.

[61] Bogg and Green (n. 60).

[62] See Siliadin (n. 36); Virginia Mantouvalou, ‘Work and Private Life: Sidabras and Dziautas v. Lithuania’, 30 European Law Review 575 (2005)

[63] Hounga (n. 56), 48 and 49.

[64] Mirza (n. 50); Hall (n. 52).

[65] Mirza (n. 50), 120.

[66] Ibid., 103.

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