Since the enlargement of the European Union, with the general principle that citizens of EU states have the right of free movement to work, increasing numbers of migrant workers have found employment in the United Kingdom. Migrant workers are generally regarded as being highly motivated, reliable and committed. Many of these workers do not have a fluent grasp of English and may be particularly vulnerable to failings in health and safety practices. The large number of migrant workers from Central and Eastern Europe currently employed in the United Kingdom has started to make an impact on health and safety and employment law.
Bristol has a significant population of migrant workers. Anyone providing legal advice to migrant workers should be aware of their vulnerability.
These workers may be prepared to accept lower wages than their British counterparts, because wages in their home countries are far lower than those in the United Kingdom for comparable work. Those migrant workers who are highly educated find themselves in a position where they are not familiar with their employment rights. They may feel that they are in a vulnerable position in a foreign country with whose laws and customs they are unfamiliar. English employment tribunals and courts are increasingly demonstrating an awareness of this position.
The Health and Safety Executive has shown itself to be well aware of these problems. It has issued detailed advice and guidance on the proper management of migrant workers’ health and safety. The HSE recognises that factors such as poor language skills and unfamiliarity with the workplace can magnify the effects of existing health and safety problems. It advises that migrant workers with better English should be asked to interpret for their less fluent colleagues. Internationally recognised signs, videos or audio materials can be used to communicate health and safety messages.
In general, tribunals and courts have expressly recognised the problems arising in relation to large numbers of workers with a limited grasp of English language, law and culture. Spokespersons for the HSE have repeatedly commented on the vulnerability of such employees in relation to health and safety.
Examples of health and safety prosecutions involving migrant workers
In July 2009 Thomas Thomson, the director of Thomas Thomson (Blairgowrie) Ltd, a fruit farming company, was fined following the death of a migrant worker by electrocution.
In July 2006 Gerard Faltynowski, a Polish migrant worker, was helping to build a polytunnel in a field near Blairgowrie in Scotland. The polytunnel was placed below three overhead power lines carrying 11,000 volts.
Faltynowski had slotted thirteen poles, each one half a metre in length, and was carrying them vertically. The pole touched the cables. He was killed instantly.
Thomson was fined £1800 under Regulation 3 of the Management of Health and Safety at Work Regulations 1999 for failing to make a suitable risk assessment of working below power lines.
In August 2006 a gangmaster in charge of Chinese migrant cockle pickers was sentenced to 14 years’ imprisonment on 21 counts of manslaughter. The facts, in summary, were that 23 Chinese migrant workers died after a group of 35 cockle pickers were cut off by the tide after dark in February 2004. Twenty-one bodies were later recovered.
The gangmaster – Lin Liang Ren – was also convicted of perverting the course of justice and facilitating illegal immigrants to work in the United Kingdom. His girlfriend, Zhao Xiao Qing, was sentenced to two years and nine months imprisonment for perverting the course of justice and facilitating. His cousin, Lin Mu Yong, received a sentence of four years and nine months imprisonment for helping cocklers to break immigration laws.
In August 2007 Shah Nawaz Pola was fined and imprisoned following an incident in which a worker suffered life-threatening injuries on a construction site.
Pola employed a number of migrant Slovakian workers to build an extension to a house in Bradford. He paid them each £30 a day in cash.
In November 2005 Dusan Dudi, one of the workers, fell from inadequately constructed scaffolding when the wall which he was demolishing collapsed on him. A concrete lintel struck him on the head. He suffered injuries which it was thought would be fatal.
Although Dudi’s life support machine was switched off in hospital, he survived. He was left with severe disabilities and needs constant care. It is thought that he will never work again. He is ineligible for benefits in the United Kingdom and in Slovakia.
Pola had no experience of running a construction site. When he was told by an HSE inspector what needed to be done to protect the safety of workers, he replied that he did not care.
Pola had made no concessions at all to health and safety. He had not written a risk assessment nor method statements. He had failed to provide welfare facilities, proper scaffolding, adequate fall guards or personal protective equipment for his workforce. A number of contractors had left the site because safety standards were so poor.
Pola denied being in charge of the site and refused to accept responsibility for the incident.