Turning a Blind Eye. The British state and migrant domestic workers' employment rights

Working Lives Research Institute, London Metropolitan University

Turning a Blind EyeThe British state and migrant domestic workers’ employment rights

Nick Clark & Leena KumarappanAugust 2011

Turning a Blind Eye | 1

AcknowledgementsWe would like to thank Nuffield Foundation for funding this research. We would also like to thank Dr Bridget Anderson (COMPAS, Oxford University) for her help and advice throughout the project. Thanks also to Unite the union for giving us access to the domestic workers terms and conditions survey and special thanks to Dave Turnbull for his support. Of course the project would not have been possible without the openness with which Justice for Domestic Workers let us work with them for the duration of the project. Many thanks to all those who participated in the research and to those who for whatever reason could not participate. Thanks also to Larry Herman for permission to use his photograph of a Unite meeting for domestic workers.

CONTENTS

Executive summary 2

Introduction 4

Background and aims of research 5

Methodology 9

Findings 11

Conclusions 24

Recommendations 26

Bibliography 27

Appendix: 28

2 | Turning a Blind Eye

This research, funded by the Nuffield Foundation, set out to investigate Migrant Domestic Workers’ (MDWs) employment conditions and the enforcement of their employment rights.

It was carried out between October 2010 and April 2011, in close cooperation with Justice for Domestic Workers (J4DW), a self-organised group of workers who are (or who have been) on the Overseas Domestic Worker (ODW) visa. The methodology included making Subject Access Requests to the UK Border Agency (UKBA) to gather the written terms and conditions of employment lodged by employers at the time of applying for or renewing a worker’s visa and interviews with workers to establish their actual pay and conditions at work. A survey of migrant domestic workers’ pay and conditions conducted by Unite the Union, has been used to compliment and illuminate our data.

Key findingsDocumentation held by UKBA In order to apply for an ODW visa the

employer is required to complete and sign a statement of the main terms and conditions of the domestic worker’s employment. Documents held by UKBA are inadequate and do not hold sufficient information to assess the workers’ conditions of work: in over 50% of the cases they do not have enough information to assess whether the National Minimum Wage (NMW) is being paid.

UKBA are in possession of details of abuse (sometimes very serious) reported by workers changing employers. In none of the cases did we find any evidence of UKBA taking action to rectify the problems, or notify appropriate enforcement bodies.

Pay Of 92 contracts and letters held by the

UKBA, in only 20 cases (22%) was it possible to establish from the details supplied that at least the NMW was being paid.

Taking into account actual working hours, even after accounting for any tax, NI or accommodation charges, 60% of MDWs surveyed by Unite appeared to be paid less than the National Minimum Wage.

Pay rates were often set in round numbers with £200 per week (or £800 per month) being the most common, but with no evidence for there being a going rate per hour.

Working Hours Domestic workers are not covered by the

48-hour restriction on weekly hours and on night work set out in the Working Time Regulations. They are, however entitled to weekly and daily breaks. In practice, therefore, there is a maximum of 78 hours a week, but 27% of the Unite survey reported weekly hours in excess of 78 hours. Some of these reported working for 168 hours per week – being continually “on duty”. Interviewees reported being obliged to sleep in the same room as children (or sometimes adults) for whom they were caring, so that if their charges woke, the worker was on hand to deal with them.

Income tax and National Insurance Workers repeatedly expressed concerns that

tax and NI were not being properly deducted, or not being paid to the government. Sixteen out of the 22 interviewed referred to this, and half of those surveyed said they did not receive payslips. Evidence of paying tax and national insurance was seen as important for immigration status (applying for visas, Indefinite Leave to Remain or UK citizenship) and for contributory benefits. Employment under arrangements aimed at avoiding tax could render employment contracts and the Minimum Wage, unenforceable. Workers want to pay their way, and resent their employers attempting to defraud the state. We estimate that employer tax evasion is likely to cost the exchequer at least £37 million per year.

Health and safety Over a third of those surveyed (37%) said

they had suffered an injury at work (cuts, burns, slips or trips), over two thirds (69%) said they experienced work-related stress symptoms (headaches, sleeplessness and anxiety), and nearly three quarters (72%) reported suffering from regular aches and pains (such as back or shoulder problems). However the HSE has no remit to inspect private households – even if there are employees there.

Documentation Workers are entitled to receive both itemised

payslips and a written statement of their terms and conditions. The failure to provide these documents – particularly payslips – strongly suggests that there are likely to be more serious breaches in terms of minimum pay, rest days, breaks and/or working hours.

Executive summary


Workers’ knowledge of their rights Although we suspect those interviewed had

better knowledge about their employment rights than most migrant domestic workers in the UK, we found it was limited. All those interviewed knew of their right to change employers and had a fair idea of the NMW, but had a more sketchy knowledge of their working time rights.

Enforcement in practice National Minimum Wage: the exclusion

of “family workers” from entitlement to the NMW leads to conflicting advice from different government bodies regarding domestic workers’ entitlements, and unreasonable interpretations by some Employment Tribunals. Consequently some domestic workers are not able to enforce the NMW.

Working time enforcement: the parts of the Working Time Regulations which apply to domestic workers (daily and weekly breaks, paid holidays) can only be enforced through an application to an Employment Tribunal

Tax and National Insurance: the level of enforcement against employers failing to make or pay deductions is very low (only 14 complaints about employer compliance were investigated in 2006/7) and hard for individual domestic workers to access.

Summary & conclusions Those working and living in their employers’

homes are in a potentially vulnerable position, working alone, excluded from health and safety regulations and several other key employment protection laws as a matter of deliberate government policy. MDWs from outside the EEA may only work lawfully in the UK if they have a visa requiring them to work full time as a domestic worker in a private household. This increases their reliance on their employers and dissuades them from enforcing their rights.

The right to change employers is vital in enabling MDWs to escape from employers who contravene their rights, but few resources are available for them to obtain redress from those who have abused them.

We conclude that the domestic worker exclusions from employment rights should be reversed, that the UKBA visa regime should require more detailed contracts and payslips and that more inter-agency cooperation and enforcement would both pay for itself and improve the working lives of migrant domestic workers.

Executive summary


The idea for this project first arose when one of the researchers began providing some basic advice on employment rights to Justice for Domestic Workers (J4DW) a self-organised group of workers who are (or who have been) on the Overseas Domestic Worker (ODW) visa. It became clear that there were particular barriers to migrant domestic workers wishing to assert their rights as workers in Britain. It seemed that evidence that was provided as part of the visa application process might be used to support action taken to enforce employment and contractual rights, and we successfully applied for a small grant from the Nuffield Foundation to examine this possibility.

We had initially anticipated a short, pilot project which could be completed in three months. In the event this turned out to be very optimistic in terms of timescale, and our methodology ran into a number of problems (discussed below). However the data we gathered, even though more limited than we would have liked, presented us with a set of fascinating revelations about not only this particular group of workers but with relevance to other groups of workers in precarious employment.

While we have had to adapt our research to take account of the problems encountered, its focus has remained on migrant domestic workers’ employment rights and their enforcement. However, we have had to consider some other related issues, notably: the ODW visa and its future; the notion of the home, whether household

“chores” constitute work, and how that should be regulated;

the payment of tax and national insurance; the priorities and strategies adopted by

migrant workers who are self organised.

All these issues were discussed with a working group of J4DW members during April 2011. Further discussion took place at a conference in London on May 26th, with an audience including practitioners from advice bodies, NGOs, unions, government departments and other academics (as well as domestic workers). The programme for this conference is attached as Appendix 0. The conclusions and recommendations included in this report have been prepared taking into account the valuable contributions made by participants at these events, but they are the responsibility of the authors.

Introduction


Background and aims of research

The International Labour Office (ILO) estimates that there are at least 52.6 million and perhaps as many as 100 million domestic workers worldwide. Most of these (83%) are women, and on a global scale domestic work accounts for over 7% of all women’s waged work (ILO 2011a).

At the time we were conducting this research, the International Labour Conference was considering the adoption of a new Convention concerning decent work for domestic workers. Between the completion of the research and final version of this report, this convention was adopted by the ILO. The UK government did not vote for (or against) the adoption, because it said it did not intend to ratify. The Minister for Employment Relations (Ed Davey) said in a Westminster Hall debate on 29 June that UK ratification would have little effect since the basic employment rights of domestic workers were already protected under law (HoC Library 2011).

This study is focused on the enforcement of employment rights of migrant domestic workers who are working in Britain. The employment rights of domestic workers in fact differ in some key respects from those of other workers in Britain (see below). Furthermore, discussions with J4DW members prior to the commencement of the project revealed that they often lacked basic documentation regarding their employment (such as contracts, job descriptions and pay slips), as well as information about their employment rights and how to enforce them. Our study therefore tests the key justification made by the UK government for not ratifying the Convention – although this was not our initial intention.

An examination of the UKBA website during the early months of 2010 showed that applications for Overseas Domestic Worker visas were required to be accompanied by a statement of terms and conditions of employment, signed by both employer and employee. This statement is also required when visas are either renewed or (where migrant domestic workers have changed employers) issued for a new employment. A model form is included on the UKBA website. It asks for information on: job title and duties; rate, frequency and method of payment; weekly hours of work and free periods; sleeping accommodation; holidays; notice periods.

According to the Immigration Directorate Instructions which guide the actions of civil servants involved in control of immigration:

Statement of terms and conditions of employment“The employer must also complete and sign a statement of the main terms and conditions of the domestic workers employment at the entry clearance stage or when a leave to remain application is being submitted for the domestic worker to remain with a new employer.”

Our initial discussions with advice workers, trades unionists, and Justice 4 Domestic Workers, indicated that in practice migrants did not receive a copy of this document. Indeed, many do not know of its existence, although they might be aware of having signed some sort of paper at the time of application for the visa. It seemed that the information contained in those statements could be of value in establishing what employers promised to workers, and also as possible evidence of a contract of employment which could then be enforced through normal channels (Employment Tribunals or County Courts).

Our project therefore sought to investigate whether the requirement to provide information on terms and conditions is being complied with, what terms and conditions were being described by employers, and how these compare with workers’ accounts of their employment conditions in practice.

Our intention had been to seek copies of the written statement of main terms and conditions of employment. Where the worker did not have a copy, a Subject Access Request for a copy would be made to the UKBA, with the agreement and written authority of the worker concerned. On receipt of copies of the documents from the UKBA, the terms contained in the statements were to be analysed and compared with data on reported pay and conditions collected by Unite the Union through a survey of migrant domestic workers. Structured interviews with 25-30 of the workers were to be conducted to examine their employment circumstances in more detail.

We then intended to analyse the possibilities of using such documents as a means of protecting rights, and to understand what constraints and opportunities such possibilities offer migrant domestic workers. Based on our findings regarding promised and actual terms


of employment, we planned to determine which of the state’s regulation and enforcement mechanisms might offer the workers redress for any deficiencies, and to discover the perceptions of migrant domestic workers of the potential benefits and disadvantages of using such mechanisms.

The data gathered, it was hoped, would also give us empirical evidence with which to consider the broader relation between immigration controls and employment protection, specifically: Is the guidance on domestic worker visa

issuance being complied with? Does the process for screening applications for domestic workers’ visas ensure that domestic workers are employed in line with minimum legal entitlements?

Could domestic workers utilise immigration documents for pursuing claims for breaches of employment rights or contracts, and how do they perceive the benefits and risks of doing so?

What are the broader implications for the argument that immigration controls are a means of affording vulnerable workers protection?

Domestic Work in BritainAccording to the Labour Force Survey, there are just over 52,000 workers in the “domestic personnel” sector1, approximately 33,500 of whom are employees (Labour Force Survey, July-Sept 2010), the balance being self-employed. The occupations include maids, cooks, waiters, valets, butlers, laundresses, gardeners, gatekeepers, stable-lads, chauffeurs, caretakers, governesses, babysitters, tutors and secretaries. However, these figures appear to be estimates, and due to a change in the Industry Classification are not directly comparable with earlier years, so trends are not easy to discern. It is notable that this sector appears not to include care givers, which it has been estimated (Anderson 2007, Cangiano et al. 2009), is likely to be an increasing area of activity.

Migrant Domestic Workers and the Overseas Domestic Workers visaThe Overseas Domestic Workers visa in its current form has existed since 2003. Before 1998 domestic workers could come to UK with their existing employer, but could not change employers, and had no route to settlement in

UK. This meant that those who left an abusive employer became undocumented.

A long campaign by the Transport and General Workers Union (now part of Unite the Union) & Kalayaan (amongst others) led to a change in practice being introduced by the Labour government in 1998. This meant that overseas domestic workers could change employers and had a route to settlement in UK. These changes, which did not apply (and still do not) to workers in diplomatic households were formally made part of the “immigration rules” in 2002.

To enter the UK under the Overseas Domestic Worker (ODW) visa, a worker must be aged 18-65, have been employed as a domestic worker for a minimum of one year prior to application “under the same roof” as their employer, travel to UK in the company of employer, or employer’s family member(s), work full time as a domestic worker only, and have no recourse to public funds.

After entry they are permitted to change employers as long as they continue to work as full time domestic workers in private homes, and to acquire the right to remain and citizenship after having remained in the UK for the requisite period (five years). Plans to restrict these rights as a result of the introduction of the Points Based Scheme were postponed until at least 2011 as a result of a campaign in 2008/9. However, the highly personalised relationship with their employer, the isolation of their work environment, and their dependence on the employer for annual visa renewals, means that domestic workers can continue in a particularly precarious position for many years (Anderson 2007, Kalayaan 2008, Oxfam and Kalayaan 2008).

In recognition of the vulnerability of this group of workers, the government requires as part of the process for applying for a domestic workers visa to enter the country (or when visas are renewed or issued for a new employment where migrant domestic workers have changed employers), the employer to provide a statement of pay and other terms of employment. This should be signed by the workers, and a copy given to them. According to the Immigration Directorate Instructions, the purpose of the statements was to provide some protection to the workers.

In 2010, 15,690 visas were issued to domestic workers from outside the EEA (including 335 dependants). However, it is likely that this overstates the number actually entering – in 2009 14,885 were issued, but only 10,100 were

1 UK Stan dard Industrial Classification of Economic Activities 2007, Division 97.0: “The activities of private households as employers of domestic personnel”

Background and aims of

research


admitted to the country (there is no suggestion that there were close to 5,000 refusals at the border, it is more likely that the plans of their employer changed). At the same time there were a further 7,255 grants (renewals) to domestic workers made in the UK, including 610 dependants (Control of Immigration Statistics Q4 2010).

According to statistics released to Kalayaan, less than 5% of these apply for settlement in the form of Indefinite Leave to Remain (ILR), or applying for British citizenship (Lalani 2011).

Workers from Bulgaria and Romania (the “A2” states) may also enter to work as domestic workers, but must apply for an Accession Worker Card. 2,250 such cards were issued in 2010, but it is not clear how many of these will have been for domestic work. Workers from all other European Economic Area (EEA) countries may enter to work without any restrictions, but until May 2011, those from the eight new eastern European Member States had to register when they first came to work. While it was not clear how many were working in private households, registrations of care assistants declined from almost two thousand in the third quarter of 2005 to just over 500 registrations in the first quarter of 2009 (Cangiano et al. 2009).

While these figures are not conclusive, they suggest that a high proportion (probably over half) of domestic workers in private households are migrants, with most originating from outside the EEA.

Employment RightsIn a number of areas of employment law, work in domestic households has been treated as being different from work conducted elsewhere. In order to put our findings into this context, we have set out the principal differences below.

DiscriminationPrior to July 2003, employment in a private household was exempted from rules against racial discrimination, an exemption which was then amended such that it no longer included discrimination on the basis of race, ethnic or national origins. However, most of these exemptions were removed in the 2010 Equality Act.

National Minimum WageWhen the National Minimum Wage was introduced, there was reported to be considerable lobbying on the part of Au Pair agencies to exclude au pairs. This was done with a section in the regulations which excluded

work done by family members, or those who are treated as such:

“(2) In these Regulations “work” does not include work (of whatever description) relating to the employer’s family household done by a worker where the conditions in sub-paragraphs (a) or (b) are satisfied. (a) The conditions to be satisfied under this

sub-paragraph are –

(i) that the worker resides in the family home of the employer for whom he works,

(ii) that the worker is not a member of that family, but is treated as such, in particular as regards to the provision of accommodation and meals and the sharing of tasks and leisure activities;

(iii) that the worker is neither liable to any deduction, nor to make any payment to the employer, or any other person, in respect of the provision of the living accommodation or meals; and

(iv) that, had the work been done by a member of the employer’s family, it would not be treated as being performed under a worker’s contract or as being work...”

(National Minimum Wage Regulations 1999, Regulation 2)

While this specific measure was presented by Ministers at the time as relating to au pairs (see Margaret Hodge in Hansard 25 February 1999, Ian McCartney to House of Commons Standing Committee on Delegated Legislation 3 March 1999), it clearly has a wider application, and one which may affect live-in domestic workers. The government’s own guidance at Direct Gov says:

“Living in your employer’s household If you are a member of your employer’s

family, live in their home and help run a family business or help with household chores, you are not entitled to the National Minimum Wage if you share in the family’s tasks and activities.

If you are not a member of your employer’s family but you live in their home and share in the household’s work and leisure activities, for example if you are an au pair, you are not entitled to the National Minimum Wage.”

(http://www.direct.gov.uk/en/Employment/Employees/TheNationalMinimumWage/DG_175114)

Background and aims of research


How this might work in practice for workers who are required to work full-time and who have contracts of employment is dealt with under the section on enforcement below, but there is doubt about the applicability of the Minimum Wage to at least some domestic workers.

Health and SafetyThe protections of the 1974 Health and Safety at Work Act (HSWA) do not apply to the employment of domestic servants in a private household. This means that Health and Safety Executive Inspectors do not have any powers to enforce the provisions of HSWA in this context.

Working Time RegulationsRestrictions on the length of the working week were introduced by the European Working Time Directive as a health and safety protective measure, and since the Framework Directive on Health & Safety (Directive 89/391) excludes “domestic servants” from its definition of worker, this has been taken to mean that the maximum working week and limits on night work should not apply to domestic workers (HoC Library 1998). Certain sections of the 1998 Working Time Regulations are therefore dis-applied to domestic servants in private households. These exceptions do not apply, however, to the rights to paid annual holidays, daily and weekly rest breaks.

Background and aims of

research


DescriptionAs our first aim for the project, we set out to investigate whether the requirement on employers to provide statements of terms and conditions is being complied with, what terms and conditions are being described by employers, and how these compare with the workers’ accounts of their employment in practice. In order to get access to information on workers’ stated and actual terms and conditions of employment, we used three different methods: we made Subject Access Requests to the UKBA, we conducted semi-structured interviews with Migrant Domestic Workers (MDWs), and we were given access to the Unite MDW Terms and Conditions survey which we analysed.

We were working with the self-organised group Justice for Domestic Workers (J4DW), with whom we developed an excellent working relationship. They meet on three Sundays a month for English for Speakers of Other Languages (ESOL), IT and art classes, which are organised by Unite the Union (using volunteer tutors). On one of these days each month there was also an organising meeting to discuss campaigns (such as that for the ILO domestic workers’ Convention and preservation of their rights under the Domestic Workers Visa) and a trade union meeting where subscriptions were collected and updates received on trade union activities.

The researchers were able to go along to these meetings and speak to the workers. Understanding the precarious position of the workers both in terms of employment and immigration status, every effort was made to explain the project to the workers. This was done individually face-to-face, through making repeated presentations to J4DW meetings, and by giving written project information sheet to the workers in English (see Appendix 2), and in one case, translated into Hindi. We were careful to ensure that participants understood the form and purpose of the research, had the opportunity to give and withdraw consent to participation, that any personal data was held securely and was not be retained any longer than necessary. They were assured of confidentiality and anonymity at every stage.

For the subject access request applications to the UKBA, we sought agreement and written authority of the worker concerned. These applications, along with £10 processing fee, were then sent to the UKBA. We requested information on terms and conditions of

employment held by the UKBA as lodged by the employers. Once we received the documents from the UKBA, we gave a copy to the worker concerned along with the project information sheet. Following this we conducted interviews with workers who gave their signed consent to be interviewed. During the interviews we asked them about their knowledge of the statements given by their employer to the UKBA, their actual pay and conditions (they were asked to bring along any documentation such as pay slips), knowledge of their employment rights and possible ways of enforcing those rights. They were also asked to fill out a short questionnaire about their demographic details and some details of their history as a domestic worker (Appendix 3). Interviews were conducted at the Unite offices where J4DW had their meetings and ranged from 30 minutes to one hour in length. In most cases the interviews were recorded, but in five interviews the workers were uncomfortable with the idea and only notes were taken.

In addition to these two methods, we were also given access to a survey of MDW terms and conditions of employment conducted by Unite the Union. This survey was conducted during 2009/2010 and had 108 responses from MDWs, most of whom were Unite members, but not all of whom were on the ODW visa. Some were gathered from Unite members who attended J4DW meetings at the Unite offices in central London. Others were filled out by workers attending campaign events, and through the Latin American Workers Association (which is also supported by Unite). Consequently, most of those workers who regularly attended J4DW meetings (and who were therefore included in our samples for document retrieval and interview) will also have completed a unite questionnaire.

This survey collected data on whether the worker had a contract/got payslips, their contractual and actual hours of work, weekly pay, holiday, breaks, sick pay, sickness/injury at work and their willingness to raise concerns and issues with their employer. We analysed this data and present some findings in this report.

ProblemsThe difficulties with our methodology began with the process of obtaining the agreement of MDWs to approach UKBA on their behalf in order to retrieve the documents relating to their terms and conditions of employment. The nature of the work undertaken by MDWs means that most of them have relatively little

Methodology


spare time in which the researchers might meet them to explain the purpose of the research (see section on hours of work below). Some of the workers were quickly persuaded of the potential value of seeing what documents were held by UKBA relating to their employment (and by the fact that the project would pay the £10 fee for obtaining them), but others were more reluctant. We did not press them for reasons for this, so it would be speculative to suggest explanations for this reluctance.

Furthermore, our status as researchers was less clear to them than it would have been if we were lawyers or immigration advisors, which necessitated us explaining our activity repeatedly, with the support of leading figures in J4DW. This slowed down the process of us getting signed authority from the workers.

The second difficulty was the manner in which UKBA responded. While most replies to Subject Access Requests came back by the end of the maximum 40 day response period stipulated by UKBA, very few came more rapidly than that. Queries were raised by the UKBA regarding the identity of some of those signing the Requests before they would release any data, and this seemed to become more frequent as the project went on. Surprisingly, many MDWs did not have a record of their Home office reference number. In at least some cases, it emerged from informal discussions and interviews that this was because they had not been involved in the application process, it being handled by their employers. While at first other identification details such as passport numbers, date of birth, address and signature sufficed, in the final weeks of the project these ceased to be acceptable to UKBA.

Even once documents had been returned, it was not always possible to meet the worker in order to hand them over and request an interview – J4DW did not always have contact telephone numbers for the workers, some workers had moved since signing the forms and could no longer be located, and some were not able to get a regular day off per week (see working time section below). In addition, when the documents arrived, it was sometimes clear that they were incomplete in that they would refer to other relevant documents – for example letters referring to terms and conditions of employment – which were not included. On two occasions these were made available when this was queried with UKBA by the researchers.

Finally, once workers had been handed a set of the documents from UKBA, they had the option of taking part in an interview, and about

one in four declined. They were not asked for reasons, but some volunteered that they were particularly nervous about discussing their circumstances when their visa was close to its renewal date.

Response In the time available to us it was therefore only possible to send a total of 51 Subject Access Requests to the UKBA to which 43 responses were received. Four of the applications came back citing insufficient information and for the remaining four acknowledgements were received and the documents were still awaited when this report was written. In the 43 sets of documents there were 92 statements of terms and conditions of employments.

The statements of employment ranged from a proper contract detailing all the terms and conditions of employment, to a letter from the employer stating that they are complying with the UK National Minimum Wage legislation. None of the sets of documents included a copy of the standard form from the UKBA website.

Of the 43 workers whose documents we got access to we were able to interview 22. All 22 were women. Although there were a few men in J4DW and we got documents back from the UKBA for three men, these could not be located again and we were unable to interview them. The break-up of the interviewees in terms of their age, nationality, number of years they had worked as a domestic worker and number of years they had worked in the UK are set out in Appendix 1.

During the interviews we asked about the occupations of their employers. The workers did not always know for each employer they had had whilst working in the UK, but those who did know identified: Working in commerce/business: 7 cases; Bankers: 5; Other financial services: 4; Lawyers/barristers: 4; Doctors: 4; Jewellers: 3; Diplomats: 3; Royalty: 1; Others: 7 (including three in education).

The Unite survey did not include any questions about demographic information.

Methodology


Documentation held by UKBA UKBA explained to the researchers how they operate the visa system with regards to information about terms and conditions:

“In order to qualify for entry under this route, individuals are required to show that there is an existing relationship between the domestic worker and their employer, as well as confirming that they are employed full-time. In order to assess this we request written details of the terms of the employment. After entry to the UK this forms an important check that the employer is compliant with UK employment legislation, such as the national minimum wage. Once this information is received it is normally saved on file, so that it can be recalled if required to cross check on future applications.”E-mail from UKBA to researchers, 12 April 2011

UKBA has a prescribed format in which to give the terms and conditions of employment. This is available to download from the UKBA website. We did not see this form used in any of the 92 cases. UKBA were not able to tell us how long this form had been in use, but the version currently on the website is dated October 2009. Even if that were the first date on which the form was available, twenty of the cases we examined were sent to the UKBA after then, and so ought to have made use of the form.

According to Home Office Overseas Domestic Worker visa requirements, ODWs have to notify the UKBA of change of employers. An analysis of the reasons given for change of employer shows that UKBA is in possession of details of abuse (sometimes very serious). Eleven letters suggest low pay and/or long working hours; five specifically mention maltreatment and exploitation, and in three cases lodged with the UKBA, refusal to pay tax and National Insurance by the employer has been cited as the reason.

In response to a query with the UKBA, we were told “Information about alleged abuses, both by the employer and employee, comes to UKBA from a range of sources. It is passed on as and when appropriate.” (E-mail from UKBA to researchers, 12 April 2011) In none of the cases did we find any evidence of UKBA taking action to rectify the problems, or notify appropriate enforcement bodies.

FindingsExample of a contract of employment with sufficient data to calculate hourly rate of pay:

Example of a letter written by an employer to the UKBA:

None of the workers we interviewed had any knowledge of matters having been passed to the NMW Inspectorate, or of any approach having been made direct to them or to their employers.

Below and on the next page we show some examples demonstrating the variety of formats found, and the type and quality of information provided.


Example of UKBA’s knowledge of details of abuse, from file notes: Example of UKBA’s knowledge of details of abuse, from file notes:

An example of a report to the UKBA demonstrating indicators for forced labour:

PayThe Immigration Directorate Instructions explain that visas may not be refused on the grounds that the NMW is not being paid, but the UKBA e-mail we quote above, explained to us that requesting written details of employment terms was a check that UK legislation (including the NMW) was being complied with.

Taking the National Minimum Wage as an example, we examined the details retrieved from UKBA files to discover how effective this method could be in ensuring compliance. In all, details of 92 visa applications (or renewals) were supplied under the personal data requests. Figure 1 shows the distribution of cases according to the details provided. In only 20 cases (22%) was it possible to establish from the details supplied that at least the national minimum wage was being paid. In the majority of cases (50 or 54%) there was insufficient data provided by the employer to establish the hourly rate of pay. The most common reason for this was that while a rate of pay was provided, no details of working hours were included (39 cases, or 42%). In some cases (13%) it was possible that the NMW was being met, but not certain, as rates may have been quoted net of tax and National Insurance, and the accommodation offset might also apply (if the worker was living at the employer’s premises)2.

However, in ten cases, even if the offset applied and the sum quoted was also net of tax and national insurance, the hourly rate based on the pay and hours provided clearly fell below the NMW. In the most extreme case, dating from 2007, the details provided to UKBA and recovered by us from their files said the worker would be paid $200 per month for a 48 hour week (effectively 60 pence per hour). (see Figure 1)

A striking feature of the details provided by employers is their preference for paying wages in round numbers. 81 rates of pay were provided in the records, ranging from £29 up to £322 per week. However, two thirds (54) were set at obviously round numbers in sterling, expressed either as weekly or monthly figures. Furthermore the two lowest rates provided (£29 and £78 per week) were in fact round monthly salaries when expressed in other currencies (200 US dollars and 2000 Saudi Riyals per month respectively).

2 When a worker is living in accommodation provided by their employer, there is a maximum amount of money which can set against the Minimum Wage by the employer. At present (July 2011) it is set at £4.61 per day up to a maximum of £32.27 per week.


Rates reported by respondents to the Unite survey were more dispersed (between £11.50 and £400 per week), and having been collected in two or three batches over about one year (2009-2010), were for a more restricted time period than the statements which covered a period of six years. They also displayed (although to a lesser extent) some bunching at round figures – notably £200 (19 out of the 86 who gave figures) and to some extent £250 (8 cases), £300 and £350 (6 cases each) per week.

There was a tendency for rates of pay to be quoted net of tax and national insurance in the details provided to UKBA: 23 out of the 24 which provided this information said this (only one said that the rate was gross). This seems to be common practice within this type of work, as we confirmed from simply checking posts advertised on the websites of domestic work agencies, where most rates were quoted net. The Unite survey asked for details of “weekly pay before tax”, but this is a distinction which is not always fully understood by these workers (it seems from interviews), and we suspect that the responses generally refer to net pay (indeed for those without payslips it would be hard for them to know what their gross pay would be).(see Figure 2)

Examples of weekly wages in round numbers (n=81)

5 cases at £600 per month3 cases at £650 per month4 cases at £150 per week3 cases at £700 per month11 cases at £800 per month9 cases at £200 per week4 cases at £230 per week9 cases at £250 per week3 cases at £300 per week2 cases at £1400 per month1 case at £400 per week

Total: 54

%30

25

20

15

10

5

0Range of weekly pay

Less than £50

£50 – £100

£101 – £150

£151 – £200

£201 – £250

£251 – £300

£301 – £350

over £350Figure 2 Distribution of reported weekly pay: proportion of responses to Unite survey(n=86)

Findings

60

50

40

30

20

10

0Proportion of all statements (%)

Pay rates, no hours

No pay rate, no hours

Hours, no pay rate

Total Insufficient data provided

Possibly meets NMW

At or above NMW

Clearly below NMW

Sufficient data to calculate

Figure 1 Analysis of employment statements retrieved from UKBA (n=92)


The two sources of data suggest that, for employers at least, there is a going rate of about £200 per week, or £800 per month. It is not clear how this has been established, although during interviews workers talked of attempting to increase their pay through some form of negotiation, sometimes beginning when they discovered the cost of living in London soon after arriving. The main means of influencing wages, however, was seeking a better wages when changing employers.

There is much less evidence of there being a going rate for hourly pay. Even in the details given to, and recovered by us from, the UKBA, a variety of working weeks were quoted for the same pay – for example amongst those terms and conditions quoting a wage of £250 per week (and giving details of the hours of work), four had notional working weeks of 40 hours (an hourly rate of £6.25), while others quoted 48, 50 or 60 hours’ work for the same pay. Similarly, while one employer said in April 2009 that they were paying £200 for a 35 hour week (£5.71 per hour), another from June 2008 said that the working week for the same £200 per week would be 66 hours (£3.03 per hour).3

A similar picture emerges from the Unite survey data, where workers were asked to give details of both the hours they were supposed to work, and how many they actually worked. Rates per hour calculated on either the hours of work they reported having agreed, or on those they reported actually working showed a wide variation, with no evidence of clustering at any specific rate. Most (59%) reported real hourly rates of less than £4 per hour.

Distribution of hourly pay from Unite survey

Hourly rate (based on reported hours worked)

% replies

Less than £2 18.8

2.00-3.99 40.2

4.00-5.99 17.5

6.00-7.99 7.5

8.0 and over 5

3 The former complied with the National Minimum Wage (at that time £5.73 per hour), since the employer said that this was net of deductions and that accommodation was provided. The latter most certainly did not: the adult NMW at that time was £5.52 per hour, so a 66 hour week would have paid £364.32

gross, or £286.09 net. Even taking into account the accommodation offset of £30.10 per week in force at that time, this worker would have been substantially underpaid.

4 £297.13 - £31.57= £265.56, divided by 65 = £4.09

Findings

To establish how this relates to the National Minimum Wage, we calculated a notional net hourly minimum based on the median weekly hours worked (50% of those replying reported working more than 65 hours per week). A gross weekly wage for 65 hours at the NMW would have been £377, which would be a net wage of £297.13. Even if all workers were also provided with accommodation (and not all were), the accommodation offset would only reduce the net wage by a further £31.57, so the net hourly pay below which any pay is likely to fall below the NMW would be £4.09 per hour4 (all rates valid at 01/10/09).

So even with the assumption (generous, as it turns out) that the employers are making deductions for income tax and National Insurance, and are entitled to offset for providing accommodation, in at least 60% of cases, the minimum wage is not being paid. The real figure is likely to be much higher, since many employers will not in fact be making deductions or paying them to the exchequer.

An additional issue is the difference between pay promised and pay received. The Unite survey did not ask about any such difference, but during some interviews this issue came up, with interviewees reporting variations to wages, sometimes justified on the basis of hardship, or the explanation offered that wages would be paid on their return to the employers’ country of origin.

Some reported having been able to secure increases in pay by asking their employers:

“On Sunday I had my day off. I ate in McDonald’s, I called my family, I bought my fare for train and bus, and then I estimated that costs is three times higher than in Hong Kong… I went back home and talked to my employer… I said with salary that you offer me, how can I survive here?… So they said OK, we give you the whole £700 per month.”

Some other employers were more problematic, and payments would vary in sum and frequency, with employers sometimes pleading reduced circumstances to justify permanent or temporary reductions.


Working timeHoursIt can be seen from the figures above that the question of the number of hours worked per week is crucial, since pay seems to be set by employer with a fixed, nominal weekly (or monthly) sum in mind, which is not related to the number of hours worked.

The terms and conditions documents retrieved from UKBA gave weekly hours in 43 out of the 92 cases, ranging from 30 (in one case) up to 66 (again in one case). Almost half, though (20 out of 43), said the working week would be 40 hours, with 5 saying 48 hours, 4 saying 35 hours and 3, 50 hours. Although there is no definition as to what constitutes “full time” in the context of the ODW visa, UKBA told us that 30 hours per week was seen as the threshold and that guidance was about to be issued to that effect (E-mail from UKBA to researchers, 12 April 2011).

Those responding to the Unite survey had been asked how many hours per week they had been “supposed to work” each week. Responses ranged from 10 hours (2 cases out of 86 responding) up to 168 (one case). Most (63%) cited 48 hours or less, with 48 hours being quoted by almost one in four (23%) and 40 hours by about one in ten.

However, they were also asked how many hours they actually worked per week, and 97 responded. Again there was a huge range, from 16 hours (two cases) up to 168 hours (three cases), with the median lying at 65 hours per week. Only seven per cent said they actually worked 48 hours, and three per cent said 40 hours. This might be due to variation in the way in which workers assess their working time, or in the amount of work that an individual employer can extract from the specific worker.

As set out in the Background section earlier in this report, domestic workers are not covered by the restrictions on weekly hours (48 hours unless the individual opts-out) and night work set out in the Working Time Regulations. They are, however covered by the right to have at least one full day’s rest per week, and the right to a break of at least 11 hours between finishing work on one day and starting again on the next.

This means that, even though there is no specified upper limit on the number of hours that may be worked, in practice there is a maximum of 78 (the equivalent of 6, 13-hour days). If any worker performs more than that number, then either their daily or weekly rest (or both) is insufficient to comply with the Working Time Regulations. Looking at the responses

regarding actual hours worked, 27 per cent gave figures in excess of 78 hours. Some of these, of course report working for 168 hours per week, and this clearly refers to being available to work, or being “on duty”. From interviews and other research we can see that this includes workers being obliged to sleep in the same room as children (or sometimes adults) for whom they are caring, so that if their charges wake, the worker is on hand to deal with them. This is not an unreasonable interpretation, although the definition of on-call duties as work determined in a 2008 Employment Appeal Tribunal case said that hours during which a residential worker was on call and awake qualified as working time for the purposes of calculating pay (Hughes v Jones & Jones T/A Graylyns Residential Home, UKEAT/0159/08/MAA).

“Sometimes we are tired as well, we are not slaves that we can work 24 hours.” (Filipina, Female, 40-49)

The Unite questionnaire also asked about weekly breaks (or days off). 12 per cent said that they got less than one day off – sometimes half a day, sometimes none at all – a beach of the WT Regulations. Over half, however, reported getting more than one day (usually 2, sometimes 1.5 days). Of the 21 documents recovered from the UKBA which specified the number of days worked per week (so three quarters did not), 12 said 5 days, seven said five and a half, and two said 6. However, this is often an area of dispute for those who are living in. One of those interviewed talked of the promise of time off not being met, saying:

“I want my rights. I want my employer to bring back my Saturdays.” (Filipina, Female, 40-49)

Days off are clearly more easily identified and controlled than overall hours of work. Indeed, it seems that some domestic workers have developed a strategy to ensure that they get this time, even if they are living in. Three of those we interviewed said that they had weekend accommodation outside of their employers’ homes to which they would go at weekends in order to be clearly not working, and away from their work environment:

“I will go back to my friends’ house. It is better to go there because if you stay in the house every time you see them and you don’t want to see them.” Filipina, Female, 30-39

Findings


During discussions of these findings with a group of activists from J4DW, they confirmed to the researchers that this practice was quite common, arrangement being made with the landlords of friends (who might be “live out” domestic workers), who would charge between £20 and £40 per week.

HolidaysAmongst the UKBA documents, we found that 32 out of the 92 cases (about a third) included details of annual holidays. Seven said four weeks (20 days) plus bank holidays (the current legal minimum) while 12 quoted 28 days (which is also the minimum for those working 5 days per week). The others ranged from 20 to 45 days (in one case). However, in interviews we heard that not all holiday was paid. One gave the example in the past of being given some “extra” money when taking holidays to visit her family, but not being paid her wages. On the other hand another said she had been paid extra, on top of her normal wages, when she went home (although in this case her normal wages were clearly below the NMW).

Practice as reported in the Unite survey also showed a different picture from the UKBA documents: 30% said they got no paid holidays, with 60% reporting four weeks. Three out of the 10 who responded to this question reported more than four weeks.

Tax & national insuranceOne particular problem was repeatedly mentioned during interviews – that of workers’ concerns that their tax and national insurance were not being properly deducted, or that any deductions made were not being paid to the government. Sixteen out of those interviewed made mention of this, the following being representative of their views:

“I want to pay tax, because I want to be legal, don’t want to be here illegal. I work here, everyone is paying tax, I should pay the same. That’s why I applied my self-employed. If employer don’t want to pay, I will pay.”Filipina, Female, 50-59, has ILR

While some workers did get payslips from their employer (half of those who mentioned this issue), there were problems with their accuracy. Several types of inaccuracy were reported:

Some of the wage being paid in cash, on top of what was shown on the payslip, which the worker felt they had no option but to agree: “I understand what they mean because you know, they don’t want to pay extra tax, you know. I have agreed because, you know, there is no choice.” Filipina, Female, 30-39

Payslips being handwritten and/or showing no National Insurance number or employer reference (leading the workers to doubt that deductions are actually being paid to the state);

Occasional inflation of the wage for purposes of assisting the domestic worker in their visa renewal or ILR application, or when dependents were joining them.

In some of these situations, workers reported feeling unhappy with the arrangements, even if they had agreed to them, because they felt that this increased their vulnerability.

Explanations for not receiving payslips at all fell into a number of categories:

Employer simply refusing to provide them: “Nothing (payslips) was given. I asked her so many times. I think she was writing something with her hand and whatever was written they had not given me.” Female, Indian, 40-49;

Apparent ignorance or confusion on the part of the employer (which, in the case of elderly clients, workers accepted as being genuine);

Delays or prevarication, with employers saying that the accountant was handling matters, or that it would be dealt with shortly;

Employer’s lack of resources “She cannot pay my tax and NI. I said to her, I need to find someone who pay my tax and insurance.” Female, Filipina, 50-59

For these workers, evidence of paying tax and national insurance is important for a number of reasons.

Firstly, there is the matter of their immigration status. Those we spoke to were concerned that if they did not have a record of having paid their taxes and national insurance, it might impede their applications for visa renewal, indefinite leave to remain (ILR), or in the longer term, UK citizenship. This fear is likely to have been more informed by popular discourse than practical experience – a representative from Kalayaan told the researchers in an interview that UKBA

Findings


tended not to check on such things to their knowledge.

One of our interviewees said one of the reasons she had changed employers was because problems with the declared tax and National Insurance were hampering her attempts to bring her husband to join her: “Home Office say that they are not satisfied what they are seeing as tax – how much I get money.”Filipina, Female, 30-39

Secondly, there is the question on contributory benefits. Those who have remained in the UK for some time (and some who now have ILR are planning to remain for some time) find that they have no contribution record entitling them to Statutory Sick Pay, Job Seekers Allowance, and most significantly, State Pension. One of the interviewees, for example, had worked in the UK for 13 years but was not certain that she would have any record of contributions (although she had an NI number).

Thirdly, employment under arrangements aimed at avoiding tax could be construed as being so “tainted with illegality” as to render the employment contract, or even the Minimum Wage, unenforceable. This possibility was examined by Fraser & Sher (2006), who concluded that there was a real danger that the NMW could be undermined by employers who also avoided thereby making appropriate deductions and paying employers’ NI contributions:

“By failing to deduct PAYE and NI contributions, and ensuring that the employee knows this (and perhaps somehow more actively participates in the fraud), the employer can destroy the employee’s right to the national minimu m wage, or indeed any wages at all.” Fraser & Sher 2006

Fourthly, the workers that we spoke to wanted to be paying their way, and in some cases resented their employers attempting to defraud the state.

Finally, there is evidence (we will demonstrate some arising from this research below) that non-provision of payslips is a good indicator of other employment related abuses. They are also useful in resolving disputes (regarding unpaid or underpaid wages in particular) or as evidence for use in tribunals

Our interviewees were not alone in experiencing problems with payslips. Over half the Unite sample (54 out of 106 responding) said that they did not receive itemised payslips. Interestingly,

a study on domestic workers in New York State also found that the practice of paying them “off the books” was widespread, with employers attributing this to the workers’ preferences, but also to because of questions regarding the workers immigration status (NY Dept of Labor 2010). Neither of these explanations applies to the group of workers we are studying, most of whom have visas permitting them to work as domestic workers, or have other forms of leave to remain.

Health & safetyAlthough our research was primarily concerned with contractual matters which could be documented in the visa applications, the Unite survey and the interviews covered health at work. Since this is another area in which domestic workers are excluded from the protections afforded to other workers, we have examined some of the data, albeit not in a lot of detail. This is an area worthy of more attention than we have been able to devote to it, and we hope that others are moved to conduct further studies of domestic workers’ health and safety.

The Unite survey asked several questions about domestic workers’ experience of ill health that they believed to be caused by their work. 37% said they had suffered an injury at work (cuts, burns, slips or trips), 69% said they experienced work-related stress symptoms (headaches, sleeplessness and anxiety), and 72% reported suffering from regular aches and pains (such as back or shoulder problems). While this sample is too small for epidemiological conclusions to be drawn, it is worth noting that a 2002 study of upper limb musculoskeletal disorders (MSDs) in a region of France found that cleaners (working in industry and private homes) ranked amongst the occupations most at risk of MSDs. 60% reported upper limb pain, and 42% lower back pain during the previous 12 months (ETUI 2010).

These statistics suggest that the nature of domestic work in private households may be comparable with cleaning carried out on a commercial scale, in terms of health and safety considerations.

However, workers also report that while their work may make them ill, they feel that they have to work on: 51% of those who responded said that they felt obliged to work when they were ill. Comments made during interviews support this, for example:

“I was sick – three days – she always she comes she says oh how are

Findings


you now? Take a painkiller, take a Ibuprofen, but the third day I was so sick I can’t, I can’t work and I went to the GP and he advised me to stop working.” Female, Moroccan, 40-49

“In one and a half years I never stop, even I am sick I work.” Female, Moroccan, 40-49

It is worth noting that those workers who do not receive payslips (or whose employers do not pay over contributions) will not be entitled to Statutory Sick Pay, and may not therefore have any income if they are ill. We encountered one worker who had not been able to persuade their employer to make proper deductions, and when she fell ill, her employers simply stopped paying her, and then replaced her with another worker.

DocumentationWe have already noted the prominence given to payslips by those interviewed. We have also noted the limited nature of the documents provided to UKBA. Workers are entitled to receive both itemised payslips and a written statement of their terms and conditions (under the Employment Rights Act 1996).

One interviewee highlighted the contradiction between working in a home, and being at the same time an employee:

“I don’t have a contract. My present employer, they accept me to work in their house, they trust me that means. And at that time I didn’t know that there is contract between (employer and employee) like that.” Filipina, Female, 40-49

However, the provision of these documents may be of more significance than simply fulfilling these entitlements. Our research suggests that failure to provide these documents may be a strong indicator of other, more serious, breaches.

The Unite questionnaire asked whether respondents had been issued with written terms and conditions, or an itemised payslip. The table below summarises their responses.

Unite survey: documentation of employment

Written contract?

Itemised payslips?Total

Yes No

Yes 30 15 45

No 22 39 61

Total 52 54 106

Findings

There is not apparently a clear correlation between provision of contracts and payslips, although the largest group (39 out of 106) reported receiving neither. We compared those who did and did not receive each form of documentation for level of pay, reported hours of work and days off per week.

The hourly rate is lower for those who do not get a contract, and for those who do not get payslips, but it is lower by more for those who do not get payslips.

Unite survey: Median hourly pay (based on actual hours worked)

Yes No

Written contract? £4.16 £3.63

Itemised payslips? £4.16 £2.93

Whilst overall, about 30% said they got no paid holidays, the proportion of those who did not receive contracts and got no holidays was much higher (about three-quarters), and the same was true of those who did not receive payslips (also about three quarters had no paid holidays).

The other key working time measures: number of days off per week, and number of hours worked also demonstrated that those without contracts, or without payslips fared worse than those with (see tables on next page), with one in five of those without payslips having less than one day off per week, and two in five working for 78 hours or more.

It is notable that, with the exception of paid holidays, on each of these measures, the absence of payslips is indicative of a higher level of non compliance than is the absence of a written contract.

While most of the UKBA documents fell well short of the requirements for a “principal statement” of terms and conditions required by the Employment Rights Act 1996, during the research we witnessed two workers making use of a document similar to the UKBA recommended one, which they had agreed with their employer. The employer subsequently dismissed them, and both were able to rely upon the signed document in their claims to the Employment Tribunal for back pay or notice pay.


Unite Survey: Number of rest days per weekN=108

Unite survey: Weekly hours workedN=108

Workers’ knowledge of their rightsDuring the interviews we questioned the workers about their knowledge of their employment rights in terms of right to change employers, pay, hours of work, annual leave entitlements, sick pay, rest periods (during the day and between days of work) and pay slip and tax and national insurance. We were aware that we were working with a self-organised group of workers, and all the workers we interviewed were also members of the trade union Unite, and we suspect, had better knowledge than the average migrant domestic workers about their employment rights in the UK. As one of our respondents, a 40-49 year old Filipina worker said to us “You know us, we are fighters!” Nevert heless, their knowledge of their employment rights was limited.

“I know everything because when I am here I understand everything. Before I didn’t know, but now I know everything.” Female, Moroccan, 40-49

All those interviewed knew of their right to change employers – almost all had made use of it – only one of the workers we interviewed was still working for the employer she came to the UK with. Most of those interviewed had a fair idea of NMW and knew roughly how much it was. Knowledge of working time rights was

Days of the week

Written contract Itemised payslips

All %With%

With%

Without Without

Less than 1

7 15 2 21 12

1 23 44 30 38 35

More than 1

71 41 68 42 53

Actual weekly hours

Written contract Itemised payslips

All %With%

With%

Without Without

Up to 48 27 30 33 24 29

Over 48, under 78

51 39 58 34 44

78 and over

22 30 9 42 26.7

more sketchy, although workers believed there should be some restriction on how long they worked:

“Hours should be 7 or 8 hours, something like that. I wish I could get.”Female, Filipina, 50-59

Some were aware of their right to breaks – particularly the right to a day off per week, which had been discussed in J4DW general meetings, but the notion of the 11 hour break between working days was less well understood. The notion of entitlement to paid holidays was well established, but not how many. In particular, those working 6 days per week did not necessarily see that entitling them to more paid leave (although given that pay is often conceptualised as weekly rather than daily or hourly, this might not make any difference if say, a month’s leave was taken). It seemed from the interviews that as time working in the UK passed, workers became more assertive about their rights, and were less likely to accept very bad conditions:

“Didn’t know my rights when I came here, and may have agreed to less than my entitlements.” Female, Indian, didn’t want to give age

Several workers had been dismissed at some time, and two factors appeared to hinder making any claim for restitution: insufficient service to qualify for protection from unfair dismissal, and missing the three month deadline for submitting an ET claim.

Seven of those interviewed volunteered the information that they had gained their knowledge of their rights only through their engagement with J4DW and Unite. This suggests that a less activist-based sample would have a lower level of knowledge.

Enforcement in practiceA worker knowing what her rights might be does not automatically mean that they know how to enforce them. As part of the process of engagement with the members of J4DW, the researchers spent some time explaining (in presentations to members’ meetings and during the interviews) the routes to enforcing their rights which might be available to them, focussing in particular on employment rights.

Findings


National Minimum WageOne of the workers we interviewed had made use of the National Minimum Wage Inspectorate’s services, having been referred to them by Kalayaan. Her first experience was not promising, as she was met by the inspector in a local McDonald’s where, she told us, the inspector dismissed her claim for back-dated NMW. Intercession by Kalayaan produced a fresh approach by another inspector who supported her claim, although it took three years before the outstanding wages were paid.

Kalayaan told us that in their experience, the government’s employment rights advice line (which would be the first port of call for a reference to the NMW inspectorate) tended to repeat the view that domestic workers were not entitled to the NMW. To test this, we made an enquiry, based on a typical case, to an adviser at the government’s Pay and Work Rights Helpline, who claimed that the NMW legislation does not apply in the case of domestic worker because they meet the criteria set out to determine family worker (living-in arrangement, free food and accommodation, meals with the family etc.). The same enquiry was made to the ACAS (Advisory, Conciliation and Arbitration Service) helpline, whose adviser suggested the opposing view that the workers are definitely entitled to the NMW.

We asked the NMW inspectorate to clarify their view of the applicability of the Minimum Wage to domestic workers, but they replied:

“We do not consider that there is any lack of clarity about the way the NMW legislation applies to migrant domestic workers… NMW will be enforced if appropriate.” (E-mail to researchers from National Minimum Wage, Local Compliance dated 4 April 2011).

Any worker applying for an Overseas Domestic Worker visa is required to provide a letter from their employer confirming that the employer will comply with UK law on the national minimum wage. UKBA entry clearance officers, although asked to request the employers’ undertaking to pay the Minimum Wage, may not refuse the visa on the grounds that they do not give such an undertaking.

It appears from this conflicting advice and practice that there is disagreement amongst official bodies as to whether a domestic worker is entitled to the NMW.

The Kalayaan report Ending the Abuse (2011) gives a breakdown of employment tribunal claims brought by MDWs including 41 claims for national minimum wage. Four of these claims were successful, 10 were settled and two were unsuccessful. Others, which have fallen foul of the “family worker exception” (FWE), are currently being appealed, and Kalayaan gave us access to the relevant reasons from the Tribunals in four anonymised cases.

The tests used by these Tribunals highlight the problem of interpreting the FWE. One said “there was sharing of tasks, in particular cooking and clearing up after meals. Otherwise the claimant did the bulk of the work. As regards leisure activities the claimant shared these with the children to some extent.” (extract from Tribunal judgement 4, 2010). Another used the facts that the Claimant was “included in family outings”, joined in conversations with guests, received gifts from the employer, had access to the television and was able to use the landline telephone as evidence that she was treated as a member of the family. One described the spectrum of circumstances of domestic workers from those working in a large household which might “employ one or more cooks or other live in staff” (who would clearly be covered by the Minimum Wage Regulations) to “a young foreign student working in the family as an au pair who has come to the country to learn the language”, who would not. What actually took place was apparently not enough to decide that the workers was entitled to the NMW: “the fact that during the latter part of her time working for the Respondents in the UK she herself withdrew more and more from spending time with them in our judgement is not relevant” (extract from Tribunal judgement 3, 2010). The fourth simply repeated the language from the Regulations (see Background above), and said that the relevant exclusion applied.

Informal discussions and interviews with ODWs, have touched on the way in which work is carried out in the home. It becomes clear that a double bind applies regarding “family workers”. Some workers may constantly be on duty as we have seen in the reports of working time above – particularly where the care of children (or sometimes adults) is involved. This means that they may indeed accompany those they are caring for on outings – in order to carry out their duties during those outings. For the domestic worker, this represents part of an often very long working day, but for some Tribunals,

Findings


it is evidence that they do not need to be paid for that work, since they are considered to be effectively “family members”. Working time enforcementThe only means of enforcing the parts of the Working Time Regulations which apply to domestic workers (daily and weekly breaks, paid holidays) are through an application to an Employment Tribunal, which can award compensation.

Payslips, tax and National InsuranceComplaints about failure to provide itemised payslips can be presented to an ET, who can make a declaration as to what should have been shown on payslips and can make a compensatory award based on up to 13 weeks of the deductions that ought to have been made. They cannot make declarations on incorrect figures, or failures to provide evidence of payments (such as P60s and P45s).

As for enforcing the proper deduction and payment of tax and National Insurance, since 2009 it has been possible to make a complaint of any suspicions online to HMRC. This adds to an existing telephone “hotline” service. However, there is no guarantee that any action will be taken, and HMRC may not respond. The hotline was set up in November 2005, and received 120,000 calls from the public in 2006-7. This led to 5,500 investigations being planned, of which just less than 2,000 were completed. However, of 2,600 planned investigations of employer compliance, only 14 were completed (HoC Committee of Public Accounts 2008).

Contracts of employmentWhere an employment contract exists, key terms such as pay, holidays and notice periods can be enforced through an Employment Tribunal (and in this context it is worth noting that any pay included in a contract at a rate below the National Minimum Wage would be increased to the NMW). However this must be done within three months of the alleged breach of contract (or the last event in a continuing pattern of breach).

Contracts may also be enforced in County Courts, where a claimant would have up to six years to enforce the breach. However, there is a sliding scale of court fees, based on the total sum being sought, and the target of the action (the Respondent) must be based in the UK.

Trafficking and Forced LabourUnder Section 4 of the Asylum and Immigration (Treatment of Claimants) Act 2004, it is a criminal offence to arrange or facilitate the arrival of a person within the United Kingdom for the purposes of forced labour exploitation. However, all but one of those we interviewed had changed employers since arriving. Any experience of forced labour from employers not involved in the crossing of the UK border would not be covered. This was highlighted by the case of Elizabeth Kawogo, a domestic worker from Tanzania, whose case has gone before the European Court of Human Rights, after police and the CPS failed to take action against her abusive employers, with one of the reasons cited by the police being “essentially they (the employers) did not commit the cross-border element” (ECHR 2010).

Those who are identified as trafficking victims may be permitted to remain in the country, but this is discretionary, and may rely on the individual making an asylum application. It may also rely on the individual cooperating with investigations aimed at prosecuting the alleged perpetrator. Kalayaan have conducted a detailed study of the applicability to domestic workers of the system of supporting those deemed to have been trafficked (the National Referral Mechanism or NRM). They conclude that it is not suitable – of 157 cases identified by them as having been trafficked, 102 chose not to use the NRM, preferring to seek other employment, even on an undocumented basis, because “their overriding need in spite of their experiences was to support their families and pay off debts in their countries of origin” (Lalani, 2011).

There is now also an offence for forced labour which does not specifically rely on the crossing of borders, under Section 17 of the Coroners and Justice Act 2009. The police and CPS are charged with enforcing this, but there are no statistics to date on any prosecutions.

Although courts may award compensation to individuals who are found to have been subject to trafficking or forced labour, it is not clear how this might relate to actual wages lost.

Findings


Regulation and enforcement: examples from other countries

After lengthy campaigns by migrant groups, unions and other organisations, two recent initiatives have aimed at improving the protections available to domestic workers. These were also outlined to MDWs during presentations by the researchers.

New York StateThe New York State Legislature passed the Domestic Workers Bill of Rights in 2010, coming into effect on November 29th, 2010. Key rights that it established include the eight-hour day, the right to a rest day each week, overtime at time and a half after 40 hours (for live out workers) or 44 hours’ work, paid leave and protections against harassment and discrimination, and required the State Department of Labor to prepare a report into the feasibility of establishing collective bargaining (NYS Dept of Labor 2010).

IrelandIn November 2010 it was announced that the National Employment Rights Authority (NERA)1 would inspect private households employing domestic workers, beginning in early 2011 with a pilot phase (aimed at 50 inspections) in the Mid-West region, checking that individuals were getting minimum wage and basic employment. Whilst consent would be needed of private householders for inspectors to enter their premises this is the first time when the State has formally recognised the private household as a unit of workplace inspection. NERA has also issued a Code of Practice for Protecting Persons Employed in Other People’s Homes (2007), setting out certain employment rights and protections and encouraging good practice and compliance with the law (thanks to Prof Sonia McKay for this note).

Workers’ attitude to enforcement & regulationKnowing about their rights and possible means of enforcement was valued by those we interviewed:

“Now I am not scared – I was scared but now I understand, I can speak out.” Female, Moroccan, 40-49

They wanted to assert their rights:

“If I don’t break the law, and am honest, I want to be treated properly, as a human being.” Female, Filipina, 30-39,

and stand up to abusive employers, as one reported having done, saying to her employer:

“I am legal in this country – you are not the only employer.”Female, Filipina, 30-39.

But the prospect of taking action was worrying. One who had been through the process of taking a claim through a Tribunal said:

“Of course I feel scared because this is the first time to speak about that and I don’t have any case. Of course it is scary. I never go in the court. I never see the court. This is very personal.” Female, Filipina, 50-59.

Another voiced the concerns apparently felt by many about the relationship between the various arms of the state and how their asserting their rights might be regarded, asking “would UKBA know about any involvement with the ET?” More generally, interviewees expressed particular hesitancy over taking any steps to enforce their rights when they were close to their visa renewal date: six specifically referred to this. This focussed on Employment Tribunal claims in particular (which necessitate an individual making a claim against their employer), but also the use of the Minimum Wage Inspectorate.

The hesitation was in part due to a worry that anything that might be seen as troublemaking might jeopardise their visa, but more concretely, they needed their employer’s cooperation in providing support for their visa application. Furthermore, they had to be employed as a domestic worker in a private household in order to be eligible for the visa, and therefore anything which might end up losing them their job at that time could result in them losing their visa.

Using the Tribunal system was of concern to those still working for the employer against whom any action might be directed. Six of those interviewed cited worries about losing their job, and in some cases fearing that they would get a bad name amongst networks of potential employers, making it harder to find another one.In two cases, fears about irregularities in their employment status coming to light were raised – in both cases tax and national insurance issues (some pay being received “in hand”) and in one,

Findings


the fact that she was working fewer than 30 hours per week, and so technically in breach of her visa.

The sheer effort and amount of time required to enforce their rights also deterred some, and in one case it was a combination of factors:

“I did not go anywhere [for help] because I did not want to create problem and did not have any time.”Female, Indian, 40-49

Another worker spoke about the amount of work and hassle involved in pursuing a claim. She said she would only go if she had a very strong and clear case – “the little things you compromise.”

Those who were time barred from submitting ET claims regarding previous employers showed some interest in using the County Court system to enforce contracts, but found the thought of up-front court costs troubling. One told the researcher interviewing her that she might commit up to £100 for such a case, but no more.

With regards to enforcing proper payslips and deductions of tax and national insurance, some workers had become so discouraged from trying to obtain proper documentation from their employers that they were considering opting for another (also unsatisfactory) solution:

“I am thinking after my indefinite I will do my self-employed.”Female, Indian, 40-49

We spoke to several workers who were already doing just that, in the belief that this put them in a more legally sound position than the complete non-payment of deductions apparently preferred by their employers. However, these workers are not for the most part in genuine self-employment, and this simply means that employers escape from their obligations to pay a proper wage and employers’ NI contributions. It may have the additional disadvantage that defining themselves as self employed may result in the workers having no employment rights (such as to the minimum wage). The researchers are aware of one case where this may prevent a worker pursuing underpaid wages following her dismissal.

Almost all domestic workers we spoke to wanted to ensure they were compliant with legal requirements regarding tax and national insurance, for the reasons already discussed. They were far from clear as to how they could do so, and most would have been happy to see some enforcement of the PAYE system by

HMRC, particularly if this could be done without the individual worker being identified as the source of any complaint.

In group discussions, workers often emphasised that they want workers’ rights in preference to immigration or human-rights based entitlements (e.g. relating to trafficking). Within the confines of this pilot project, we were not able to interrogate this issue very extensively, but it was clear that for workers with dependents back in their home countries, only measures which protected their ability to continue earning money (and hopefully recovering moneys owed) were attractive. This confirms the points made by Kalayaan regarding the National Referral Mechanism.

Some were resigned to a certain amount of continuing abuse while they were still subject to the visa regime:

“Sometimes I get upset (about low pay and unpaid hours of work), but it is okay because I am waiting for my five years. Then I will be indefinite and then bye-bye.” Female, Filipina, 30-39

while others saw the necessity to resist in more political terms:

“I am fighting, not for money, but for dignity.” Female, Filipina, 30-39

All saw the continued availability of the right to change employers as a crucial right, and were anxious to see that provision of the visa regime protected. However, none of those who had reported abuse by previous employers when notifying UKBA of such changes said they had had any contact from UKBA regarding the abuse.

Owing to their organisations’ activity in campaigning for the ILO draft convention on Domestic Work (ILO 2011), several of the workers had at least a passing knowledge of this measure, and some had attended events and meetings associated with the process of discussing this measure. There was also interest in the Irish and New York approaches set out above.

Findings


Conclusions

This study has focussed on the terms and conditions of employment of migrant domestic workers rather than the more dramatic stories of abuse which often find their way into the press. We have tried to examine aspects of migrant domestic workers’ lives which ought to be at least as well protected as those of other workers in the UK (while recognising that these protections may sometimes be minimal).

Those working (and sometimes living) in their employers’ homes are in a potentially vulnerable position. They may be working alone, in a workplace which is excluded from health and safety regulations, and in a job which has been excluded from several key employment protection laws as a matter of deliberate government policy.

Migrant domestic workers are at an additional disadvantage in that they may lack the language skills, networks and knowledge to assert those rights that they do have. For those MDWs from outside the EEA, there is the further problem that they may only work lawfully in the UK if they have a visa that must be renewed at least annually. This they can only do if they are working full time as a domestic worker in a private household.

Evidence that many MDWs do not receive their basic rights is not hard to come by. Indeed, we have seen evidence of unlawful employment practices which was held by UKBA. Non-payment of the National Minimum Wage appears to be widespread, if not the norm for this group of workers. Excessive working hours, failures to provide rest days and adequate paid holidays are also common. The non provision of payslips and non-payment or underpayment of tax and national insurance seem to be common practice amongst employers of domestic workers, which is generally unwelcome to the domestic workers themselves. The evidence suggests that the Employment Relations Minister’s claim that such workers already enjoy protection under the law has little basis in fact.

The scale of employer evasion of both employment rights and employers’ PAYE obligations cannot be attributed to unfamiliarity with regulations on the part of those employers. Where we have been able to establish their occupations, it is clear that they will be accustomed to dealing with complex regulations in their professional lives.

While in some cases UKBA staff appear to have made some basic checks to establish whether the Minimum Wage is being paid, in other cases, evidence that it is not appears to have been ignored. We found no evidence that workers’ reports to the UKBA of abusive behaviour by employers had resulted in any action by the appropriate authorities.

Having documentation of the employment relationship makes a difference to how easy enforcement may be, and also to how much abuse there is of basic employment rights. Within this context, it appears that payslips are a more significant indicator of the level of observance of employment rights than are contracts. They have the additional function of ensuring that workers have contribution records, and that the state receives taxation that is due. The cost of improved enforcement in this area could easily be recouped from the additional revenue collected (as was found to be the case when the Gangmasters Licensing Authority was established). If we make the following conservative assumptions

that the problem of employer evasion only extends to half of those domestic workers on ODW visas,

that those who enter each year stay only for 6 months (while those who have their visas renewed stay all year), and

that domestic workers carry out 65 hours of work per week, for which they are entitled to the minimum wage,

then quite apart from the loss of wages to the workers, about £37 million is lost to the exchequer each year from unpaid tax and national insurance (employers’ and employees’ contributions) relating to domestic workers on the ODW visa alone.

Domestic workers are uncertain about their rights, and the suggestion made to us by UKBA that information on rights, for distribution with visas, is being prepared is welcome. However, enforcement is a problem for these workers, particularly where there may be technical questions about the applicability of particular rights to them. The continued availability of advice and support for precarious workers in particular is now in question (see Tailby et al 2011) as Law Centres and CABx face cuts. It is also problematic where workers are dependent on their employers for accommodation and the renewal of their visas. The most effective means of dealing with employer abuse for workers


Conclusions

who have little or no recourse to collective or regulatory enforcement, is the ability to remove themselves from the abusive situation, and find another employer. This is also now under threat, under proposals launched after we completed our research. These may remove the visa altogether, restricting domestic workers to six month visits with no right to change employers (UKBA 2011a). This will represent a retrograde step and is likely to result in those who find themselves in intolerable situations having to opt for undocumented status in order to escape them.

The study was intended as a pilot project for a larger piece of work on the consequence of immigration regulation and enforcement on workers, and it seems clear to us that there remains a significant need for such work to inform policy development in this area. This is particularly pressing as greater restrictions are imposed on the right of non EEA nationals to work in the UK.


Recommen-dations

We are aware of the list of recommendations made by Kalayaan in their recent report (Lalani 2011), and in general would support them. The recommendations below are those that we see as being suggested by our research, assuming that restrictions on the access of non-EU workers to the UK labour market continue. It may be that these restrictions underlie many of the difficulties we have identified, but it has not been the focus of this pilot project. We have focused here on actions by the state, but will examine the potential for other organisations in the full report from this project.

This study did not set out to examine the pros and cons of restricting access to the UK labour market of non EEA nationals. However, the proposal to do away the ODW visa would make domestic workers coming to Britain with their employers more vulnerable to exploitation, and should not be adopted. Instead the regime should be tightened up in the following ways:

The right to change employers is vital in enabling MDWs to escape from employers who contravene their rights. Unlike measures which focus on trafficking, this puts the initiative in the hands of the worker, who is best placed to make judgements about the economic and emotional consequences of any enforcement action.

The National Minimum Wage regulations should be amended to establish a clear entitlement for domestic workers to the NMW. The wording used in the ILO draft convention, which would only exclude from its remit “a person who performs domestic work only occasionally or sporadically and not as a means of earning a living ” (ILO 2011) demonstrates that a form of words can be found which does not redefine voluntary domestic labour as waged work. In the meantime, the Work & Rights helpline advisors should be issued with revised and less dogmatic guidance on the applicability on the NMW.

In the same way the Working Time Regulations could be extended to cover domestic workers’ working week, thus requiring a record of hours worked to be kept. The Health and Safety Executive should then be charged with enforcement in those households which have employees.

When issuing or renewing ODW visas, UKBA should require employer to use and submit the UKBA terms and conditions form, which should be kept in the case file and made available to the worker concerned on request.

UKBA should also require employers to provide payslips as supporting evidence at least for renewals of visas.

Where UKBA suspects that from documents supplied (or information regarding changes of employer) that NMW, working time or other employment rights have been breached, information is passed to appropriate enforcement bodies as a matter of course.

UKBA should make information on employment rights, tax and NI and sources of advice and assistance available to those ODWs newly issued with visas.

Where the UKBA becomes aware of employers against whom more than one MDW has made complaints of abuse, they should instigate investigations, with a view to blocking repeat offenders from employing ODWs in the future.

HMRC should establish a responsive and effective system for enforcing PAYE regime on employers of domestic workers, with routes to enforcement both by individuals and by UKBA (or other government agencies)

High profile enforcement by HMRC, the Minimum Wage Inspectorate and UKBA should be undertaken against selected employers in order to modify employer behaviour.

The investigation of collective representation for domestic workers by New York State represents a serious attempt to go beyond state regulation, and a similar study should be conducted in UK.

The UK government should reconsider its decision not to ratify the ILO Convention on decent work for domestic workers.


Bibliography

Anderson, B. (2007) A Very Private Business – Exploring the Demand for Migrant Domestic Workers European Journal of Women’s Studies 14: 247

Cangiano, A., Shutes, I., Spencer, S., and Leeson, G. (2009) Migrant Care Workers in Ageing Societies: Research Finding in the UK Centre on Migration, Policy and Society, University of Oxford.

ECHR (2010) Kawogo v UK: Statement of Facts, European Court of Human Rights, Application no. 56921/09, published 23 June 2010

ETUI (2010), They’re worn out in every respect, interview with Yves Roquelaure in HesaMag #02, “Cleaning up: workers under pressure”, European Trade Union Institute, autumn-winter 2010

Fraser, S. & Sher, A. (2006), The National Minimum Wage: Under Threat from an Unlikely Source? Indust. Law Journ. Vol. 35, pp 289-201

Hansard (2010), Migrant Domestic Workers (Visas) Westminster Hall, 17 March 2010, Col 251WH – 273WH

Home Office (2006) Immigration Directorates’ Instructions December 2006 Chapter 5 Section 12, Domestic Workers in Private Households, at: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/idischapter5/section12/section12.pdf?view=Binary

HoC Committee of Public Accounts (2008) HMRC: Tackling the hidden economy 55th Report of Session 2007-8, House of Commons 9 December 2008

House of Commons Library (1998), Working Time Regulations Research Paper 98/82, 10 August 1998

House of Commons Library (2011) Immigration: migrant domestic workers, Standard Note SN/HA/4786, 30 June 2011

ILO (2011) Decent work for domestic workers Report IV (2B) International Labour Conference 100th Session 2011, Geneva: International Labour Office

ILO (2011a) Global and regional estimates on domestic workers, Domestic Work Policy Brief 4, Geneva: International Labour Office

Kalayaan (2008), Evidence to the Home Affairs Committee enquiry into Human Trafficking in the UK

Lalani, M. (2011) Ending the abuse: Policies that work to protect migrant domestic workers. Kalayaan, 2011.

Marsh, K., Sarmah, R., Davies, P., Froud,E., Mallender, J. and Scalia, E (2007 - unpublished) A review of the literature on the abuse/exploitation of overseas domestic workers in the UK Home Office Research Report, unpublished, released under Freedom of Information request June 2009.

NYS Dept of Labor (2010) The Feasibility of Domestic Worker Collective Bargaining State of New York Department of Labor, 2 November 2010

Oxfam and Kalayaan (2008) The New Bonded Labour? London: Kalayaan

Poinasamy, K. (2011) Protecting migrant domestic workers in the UK Gender & Development Vol. 19, No. 1, March 2011

Tailby, S., Pollert,A., Warren, S., Danford, A. and Wilton, N. (2011) Under-funded and overwhelmed: the voluntary sector as worker representation in Britain’s individualised industrial relations system Industrial Relations Journal 42:3, 273–292

UKBA (2011) http://www.ukba.homeoffice.gov.uk/workingintheuk/othercategories/domesticworkers/whatoexpect/ (Accessed 17/05/2011)

UKBA (2011a) Employment-Related Settlement, Tier 5 and Overseas Domestic Workers Consultation Paper June 2011


Appendix

1 Demographic details of interviewees:

8

7

6

5

4

3

2

1

0

Age groups

Age groups of interviewees (n = 22)

16-19 20-29 30-39 40-49 50-59 60-69

Nationalities of interviewees (n=22)

15

10

5

0Filipina

IndianIndonesian

NigerianMoroccan

No. of years as a domestic worker in the UK

15

10

5

0

No. of years0-1 2-5 5-10 11-15

No. of years0-5 5-10 10-15 15-20 20-25

No. of years as a domestic worker

8

6

4

2

0


2 Information sheet given to interviewees


Appendix

London Metropolitan University166-220 Holloway RoadLondon N7 8DB

Tel: +44 (0)20 7133 4200Fax: +44 (0)20 7133 2255

Design: www.worksong.co.uk

Turning a Blind Eye. The British state and migrant domestic workers' employment rights

Documents

Transcript of Turning a Blind Eye. The British state and migrant domestic workers' employment rights