Ganging up on exploitation

Well publicised events in recent years involving foreign imported labour have led to the regulation of persons who provide and indeed use such labour.

The Gangmasters (Licensing) Act 2004 aims to curb the exploitation of labour within the agriculture, horticulture, fish processing, gathering shellfish and dairy farming industries, or indeed the packaging or processing of any of these products. It also applies to forestry operators, although certain exclusions apply depending on the type of land and the degree to which machinery is used. The Act has in turn led to the formation of the Gangmasters Licensing Authority (the GLA). The GLA has been in existence since April 2005 with the role of ensuring that the Act is followed and that conditions are fair for legitimate businesses and workers across the sector.

Key offences

It has generally speaking been an offence since October 2006 to provide labour into most agricultural and horticultural activities, including processing and packaging, without a licence. The GLA has set out the licensing standards that labour providers must meet in order to be granted a licence. The bulk of these standards are no more than current legal requirements, such as VAT registration, health and safety, and measures generally that one would hope are already largely in place in any well run business in any event, including minimum standards for welfare/treatment of workers, worker accommodation, hours worked, recruitment and contracts, subcontracting, identity issues, age restrictions and trade unions.

The offences created by s 12 of the Act prohibit anyone from: operating as a gangmaster without a licence; or using an unlicensed gangmaster for the supply of labour.

The maximum penalty on conviction for operating without a licence is 10 years’ imprisonment and/ or a fine. For a labour user knowingly to employ a unlicensed labour provider, is punishable on conviction by up to six months’ imprisonment and/or a fine. It is also an offence to obstruct a GLA officer, and for a gangmaster to hold documentation known to be false or believed to be false or obtained by deception.

Clear message

The first prosecution under the Act was dealt with at Forfar Sheriff Court on 29 May 2008. Thorntons Law LLP represented the accused, who pleaded guilty to a contravention of s 12(1) of the Act in relation to her operation between 1 and 30 November 2006 of supplying labour to agricultural enterprises in Angus and Perthshire without the appropriate licence. Whilst this was a case which was very much at the lower end of the spectrum in terms of the size of the operation and monies generated as a result, the court acknowledged that there is a need to send out a clear and unequivocal message that the requirements of the Act must be adhered to, both in spirit and in accordance with the letter of the law.

The accused in that case narrowly avoided imprisonment (by the time the case came to court she was unemployed and the mother of two small children). The court did however require her to complete 140 hours of community service as a direct alternative to custody. It should also be noted that the presiding sheriff, Sheriff Veal, in passing sentence indicated that if the Act had allowed him to disqualify the accused from operating as a gangmaster or labour provider in future he would have given serious consideration to that. That is not however a penalty which the Act provides for at present, although that may well be something which is addressed sooner rather than later.

Comply or else

There is little doubt that this was only the first in what will prove to be a long line of prosecutions. Whilst the GLA initially took a fairly relaxed approach so as to allow gangmasters and labour providers to have an opportunity to get to grips with the new legislative requirements, the bulk of the Act has been in force for two years now and it is clear that the GLA will now be pushing for prosecutions in any case where there has been a breach of the legislation. Accordingly labour providers, and perhaps even more so users, ignore the Act at their peril. Labour users in particular should be proactive in satisfying themselves that any provider of labour is licensed. Ignorance is not a defence, and as can be seen above the penalties for falling foul of the legislation are severe. If a business is in any doubt as to whether it is affected by the Act and the licensing requirements, it should always contact the GLA for advice.

Anne McKeown, partner, Thorntons LLP