28 December, 2011
The recent case of a dairy farmer from Oxfordshire
given a conditional discharge after using an unlicensed labour
provider shows the importance of making the right checks when
employing migrant workers, says Stephens
Scown's immigration lawyer Judith Hockin…
If a farmer wants to take on temporary staff, one option might
be to use a labour provider. However, the farmer must make sure the
provider is properly licensed by the Gangmasters Licensing
Authority (GLA) first.
It's illegal for the labour provider to operate without a
license. It's also illegal for the farmer, as a labour user, to
knowingly employ workers from an unlicensed provider - it's up to
the farmer to make regular checks.
The GLA was set-up following the tragic deaths of 21 Chinese
immigrants during the Morecombe Bay cockling disaster. GLA
legislation covers farming, as well as forestry, horticulture,
shellfish gathering and food processing and packaging.
In the case of farmer Brian Barnett, he'd struggled to find
suitably qualified herdsmen and so used a labour provider to employ
two experienced Filipino men.
The judge said he was satisfied there was no question of Mr
Barnett exploiting cheap labour and that it was a purely technical
offence. The farmer satisfied all the regulations, but missed the
need for a GLA license.
There may be farmers in the Westcountry who find themselves in a
similar position, so it's always advisable to take the following
steps as a precaution:
Firstly, check the labour provider is licensed with the GLA's
register www.gla.gov.uk - note
the name of the authorised persons or postholders and keep a copy
of the registered entry. You can also confirm entries by phone or
fax and arrange for a copy to be sent to you to keep on file. If a
labour provider contacts you, don't take their word that they have
a license - still check the GLA register.
Secondly, when you're handling contractual matters you must only
deal with the authorised person or postholder at the registered
labour provider. Make sure all documentation sent to you, as
required by the GLA's Standard License conditions, comes from the
licensed business and there's nothing to suggest it's been prepared
by or originates from anyone other than the authorised person or
postholder. Make sure invoices are identified for the services
rendered by the licensed labour provider business you entered into
an agreement with.
If documentation appears to come from a business other than the
licensed business with which you made the arrangement, contact the
labour provider directly and ask them whether it's being provided
by a third-party. If they confirm they're no longer providing the
labour, terminate your arrangement and contact the GLA to let them
If documentation comes from the licensed business, but not from
the authorised person or postholder, ask the labour provider
whether they've requested a change to their registered entry with
the GLA. Wait 25 working days and check the GLA register to see if
there's been a change to the authorised person or postholder since
you last checked. Keep a copy. If the person with whom you are now
dealing is still not shown on the register as an authorised person
or postholder, terminate your agreement and contact the
When dealing with day-to-day administration of an existing
contract or making initial enquiries about establishing a new
arrangement, you can deal with anyone in the labour provider
If you have an arrangement with a labour provider for more than
three months, check the GLA's register at three monthly intervals
and keep a copy, or register an interest in the labour provider
with the GLA 'Active Check Service'.
If when you check the GLA register you find your labour
provider's business is no longer listed, or you receive
notification under the 'Active Check Service', terminate your
arrangement with the labour provider.
If the authorised person or postholder you deal with is no
longer named on the licence, you should ensure in future you deal
on contractual matters with an authorised person or postholder
currently shown on the register entry.
If you use the services of a labour provider to recruit people
who become your employees, you don't need to make further GLA
checks after you've received the labour provider's
invoice on completion of the recruitment service.
Although this might seem quite draconian, the onus is on you, as
an employer, to keep checking. It's an on-going duty and not
knowing is certainly no defence.
In some cases, labour providers don't need to hold a licence,
but other service suppliers such as some farmer-led organisations
will do - if you're unsure, check with the GLA.
If you've any questions, concerns or doubts contact your legal
advisor, your trade organisation or the GLA. More information can
be found at www.gla.gov.uk.
Judith Hockin qualified as a solicitor on 1 April
2004 and has been with Stephens Scown since July 2006. Judith
specialises purely in immigration and nationality issues,
particularly business related matters.