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 know. 

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 GLA. 

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 business. 

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.