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.

The evolving nature of labour inspection, enforcement of employment rights and the regulatory reach of the state in Britain

“…What is more, the individual dimension of enforcement mentioned earlier was limited by the post-2010 governments’ curtailing of access to Employment Tribunals through various reforms and changes to fees (Dickens, 2014), although these were reversed by the Supreme Court in the UK; however, the intention was to limit access to legal redress. The combination of difficulties in accessing tribunals and lack of capacity among enforcement agencies results in the denial of employment rights for a growing population of vulnerable workers (Barnard et al., 2018; Kirk, 2018). What we will argue in the following is that the attempted ‘socialising’ and modernisation of enforcement under the 1997–2010 Labour governments was coupled with a move to a more targeted approach focused on more vulnerable workers and an advisory role.…”

The Rule of Law and Access to the Courts for EU Migrants

“…EU-8 migrant workers perceive and experience the current enforcement landscape as exclusive and exclusionary, as our data analysis has shown (Barnard et al, 2018). In relation to the rule of law and the right of access to courts it is apparent that when the situation of migrant workers is studied on a micro level, the right is thin, that is, it is mechanistic with limited substance.…”

“…This research found different explanations for the lack of enforcement, according to the periods of residence of the migrant workers (Barnard et al, 2018). Three broad categories of migrant worker were identified: …”

“…In this section, we focus on the position of EU‐8 migrant workers, because this group has been subject to some of the strongest anti‐European migrant narratives (Barnard et al, 2018). Thereafter we explore the rhetoric on the rights of EU migrant worker.…”

Online tribunal judgments and the limits of open justice

“…It is therefore a real risk that employers or related third-party organisations might use this easy source of information to effectively blacklist employees based on their litigation history.Not only does this practice allow employers to refuse to hire applicants on grounds that are irrelevant to their capacity to do the job, thereby introducing new forms of discriminatory (and arguably irrational) hiring, it would also potentially discourage employees from bringing employment claims in the first place, out of a fear that to do so might negatively impact their future job prospects. As Barnard, Ludlow, and Fraser Butlin have demonstrated, there are clear 'fears about the consequences of raising a dispute [including in] particular concerns about the possibility of reprisal by way of being "blacklisted"' 37. Such concerns are further exacerbated if the feared consequences of reprisal are extended beyond a claimant's current workplace or local community to potentially any future employer, whether domestically or internationally: the publication of tribunal judgments might thus actually undermine the broader goal of facilitating access to justice.…”