1. Migrant Worker Deaths In Britain Roger Maddocks IRWIN MITCHELL LLP Irwin Mitchell LLP Solicitors Grey Street Newcastle upon Tyne NE1 6AE E-mail: roger.maddocks@irwinmitchell.comroger.maddocks@irwinmitchell.com Tel: 0191 279 0095

2. Migrant Worker Deaths In Britain Irwin Mitchell LLP 4th Largest law firm in the UK – established over 90 years ago National Network of offices: Newcastle, Birmingham, Leeds, Manchester, Sheffield, Glasgow and London Dedicated teams in each office dealing with workplace accident and occupational disease claims National reputation for workplace accident and disease claims – has dealt with many claims for migrant workers IM strive to provide high levels of client care for which it was won awards

3. Migrant Worker Deaths In Britain Research Commissioned by Irwin Mitchell LLP from Centre for Corporate Accountability Published material HSE – 2004 TUC – February 2005 HSE – 2006 Research from Grampian Region of Scotland – 2007 European Agency for Safety and Health – 2007 HSE – November 2008

4. Migrant Worker Deaths In Britain What is a Migrant Worker? No common definition “A person who has resided abroad for a year or more and who states on arrival the intention to stay in the UK for a year or more.” (International Passenger Survey ) “Those who have come to the UK within the last 5 years specifically to find or take up work, whether intending to remain permanently or temporarily and whether documented or undocumented.” (HSE Report 2006)

5. Migrant Worker Deaths In Britain How Many Migrant Workers Are There in Britain? No Official figures – estimates vary HSE Research (2006) suggests that in 2005 3.8% of UK workforce migrants ONS (2006) suggests that in 2005 – 1.405 million – 5.4% of working population migrants

6. Migrant Worker Deaths In Britain Where Do Migrant Workers Come From? Africa – 20% South Asia – 17.3% EU – 10/15% Note. 40% Based in London HSE Commissioned Research

7. Migrant Worker Deaths In Britain Migrant occupations Migrant workers found across range of occupations Disproportionately represented in some Private households with employed persons – 10.15% of workforce migrants (11,200) Hotels and restaurants – 7.94% of workforce migrants (91,400) Construction – 2.38% of workforce migrants (52,100) Labour Force Survey

8. Migrant Worker Deaths In Britain Problems Faced by migrant Workers Relatively short periods of work in the UK Limited knowledge of the UK ’ s health and safety system Different experiences of health and safety regimes in countries of origin Motivations to come into the UK particularly where desire to earn as much as possible in shortest possible time Ability to communicate effectively with other workers and with supervisors particularly in relation to their understanding of risk Access to limited health and safety training Failure of employees to check on their skills Employment relationships and unclear responsibilities for health and safety Lack of knowledge of health and safety rights (Migrant workers in England and Wales – HSE 2006)

9. Migrant Worker Deaths In Britain What is their employment status Migrant workers feature disproportionately in poorly paid non unionised workplaces They may be:- – Directly employed – Agency staff – “self employed”

10. Migrant Worker Deaths In Britain Relevance of employment status May determine employers duties regarding Health & Safety e.g. under common law a higher duty likely to be owed to employee rather than “self employed” worker May determine entitlement to benefits from employer e.g. employees entitled to sick pay and notice pay unlike self employed May determine entitlement to state benefits following injury e.g. Industrial Disablement Benefit

11. Migrant Worker Deaths In Britain Determining employment status Status may depend upon substance of a relationship not form e.g. “self employed” worker may be “employed” for purposes of determining:- – Employers duty to worker; or – Employers liability to another e.g. fellow worker for injury caused by workers negligent acts May depend upon reason nature of a relationship is considered – might be “self employed” for tax purposes but “employed” for purpose of considering Employers Liability.

12. Migrant Worker Deaths In Britain This is an area of difficulty “Many of the problems arise, not because there is a lack of legal protection, but because stakeholders fail (deliberately or otherwise) to recognise their responsibilities. Consequently the protection offered by health and safety law is not always delivered in practice” (HSE)

13. Migrant Worker Deaths In Britain Are Migrant Workers At Greater Risk of Death Than Other Workers? “ At present, we do not have firm evidence that migrant workers account for a significant or disproportionate number of accidents. ” “ There is, nevertheless, strong anecdotal evidence to suggest that migrant workers with low English language skills and/or poor knowledge of local circumstances are at risk. ” - HSE 2004

14. Migrant Worker Deaths In Britain Number of Deaths of Migrant Workers All sectorsConstruction Sector Migrant worker deaths All worker deaths % of deaths - migrant workers Migrant worker deaths All deaths % of deaths - migrant workers 2007/8 18 228 7.9% 127216.7% 2006/7132415.4%87710.4% 2005/69*2174.1%5608.3 % 2004/5---5697.2 % 2003/4---3714.2 % 2002/3---2702.9 %

15. Migrant Worker Deaths In Britain Do More Migrant Workers Die Than Expected? There are 5.4% or 3.85% migrant workers of the working population 05/06 – 4.1% deaths migrant workers 06/07 – 5.4% deaths migrant workers 07/08 – 7.8% deaths migrant workers

16. Migrant Worker Deaths In Britain Construction deaths 05/06 – 8.3% deaths migrant workers 06/07 – 10.4% deaths migrant workers 07/08 – 16.7% deaths migrant workers

17. Migrant Worker Deaths In Britain Rise in migrant worker deaths 2005/6 to 2007/8 all deaths rose from 217 to 229 an increase of 5.5.% Over the same period migrant worker deaths doubled from 9 to 18 2005/6 to 2007/8 construction deaths rose from 60 to 72 an increase of 20% Over the same period in construction migrant worker deaths rose from 5 to 12 an increase of 140%

18. Migrant Worker Deaths In Britain Number of Injuries to Migrant Workers Very little information Study in the south-west region 11% “ may have been ” migrant workers HSE Field Operations Division

19. Migrant Worker Deaths In Britain Circumstances of Migrant Worker Deaths in Britain CCA Records Last 6 years Information from Coroner ’ s Court Internet Search HSE Prosecutions

20. Migrant Worker Deaths In Britain Analysis of CCA Identified Cases Industry: Construction (24) Country: Poland (16) Age: 21 – 40 (30) Place: London (16) Note. 46 deaths investigated

21. Migrant Worker Deaths In Britain Case Study 1 Age 21 from Poland - PJ drowned to death on 3rd June 2006 after falling into trench full of water on his first day at work on a house extension in Wembley. It was a private house, and he was employed by the household. An inquest on 7 January 2008 at North London Coroner ’ s Court returned a verdict of accidental death.

22. Migrant Worker Deaths In Britain Case Study 2 Age 35 from Poland - EF died on 9th December 2005 when he fell from a ladder while working on the roof of a domestic property in London Road, Twickenham. The inquest on 25 September 2006 at London West Coroner ’ s Court recorded an accidental death verdict

23. Migrant Worker Deaths In Britain Case Study 3 Age 25 from Poland – SK was crushed to death on 29th April 2003, when a section of a chimney fell on him at a refurbishment job in Northwood, London. He was working for Drayton Building. The inquest held on 25th October 2005 at London West Coroner ’ s Court returned a verdict of accidental death.

24. Migrant Worker Deaths In Britain Inquest Verdicts Numbers of deaths resulting in Verdict Accidental Death 28 Misadventure3 Narrative5 Open1

25. Migrant Worker Deaths In Britain Legal Representation Inquests Numbers of deaths Legal representation6 No legal representation9 No information on whether lawyer or not 23 Too early to decide on legal representation (no date set for inquest) 8

26. Migrant Worker Deaths In Britain Prosecutions Following Death Deaths resulting in a prosecution – migrant workers 14 44% Deaths resulting in prosecution – all workers30% Deaths not resulting in a prosecution18

27. Migrant Worker Deaths In Britain Government and HSE Response to Migrant Worker Deaths Inspection and enforcement activity Communication with migrant workers Communication with employers Employment agencies Support for Gangmaster ’ s Bill

28. Migrant Worker Deaths In Britain CONCLUSIONS Little or no UK academic research Migrant workers abroad suffer more injuries than would be expected Research in the UK indicates a series of special features making migrant workers vulnerable Percentage of migrant workers in the UK working population is 5.4% In construction industry about 2.38% Until April 2008, HSE has not collected information on nationality of workers who have died at work HSE does not collect information on nationality of workers who have been injured at work

29. Migrant Worker Deaths In Britain HSE has not published data it has collected through manual searches of its database Unpublished figures show in 2007/08 number of migrant workers died higher than expected Higher than average dying in construction sector Since Morcambe Bay tragedy, HSE taking steps to assess relative risks to migrant workers – but HSE approach generally has been to approach migrant workers as special case of the more general problem of managing H & S of casual and temporary labour Problem of legal representation provided to families. Problem in the lack of legal representation provided to families at inquest More migrant workers ’ deaths appear to result in prosecution 44% of deaths involving migrant workers resulted in prosecution- (average 30%) Only 30% of convictions obtained by HSE following migrant worker deaths result in press release (average 50%) CONCLUSIONS contd..

30. Migrant Worker Deaths In Britain HSE publish all data on migrant worker deaths HSE commission more research on migrant worker safety conditions in construction sector HSE should collect information on nationality of all reported injuries Gangmasters Licensing Authority ’ s jurisdiction should be widened to apply to construction sector Should particular focus be given to migrant workers and health and safety? Recommendations