Observation (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

The Committee has noted the information supplied by the Government in 2002 and 2003 in reply to its earlier comments. It has also noted a communication dated 1 November 2002 received from the Trades Union Congress (TUC), which contains the TUC’s response to the Government’s 2002 report, a copy of which was sent to the Government for any further comments it might wish to make.

I.  Domestic workers from abroad

1. In its previous observation, the Committee referred to the statement made by the United Kingdom Worker member at the Conference Committee in 2000 that the underlying problem, which still appeared to be unresolved, was that the de facto relationship under which the domestic worker was admitted to the United Kingdom was not recognized under British law, so that normal legal employment protections did not attach to the circumstances of their employment. The Committee has noted the Government’s statement in its 2002 report that, in the event of a dispute, an employment tribunal can make a ruling on employment status and in doing so will take into account all factors relevant to the case. However, according to the response by the TUC referred to above, only a handful of such cases have been considered by industrial tribunals in recent years, in which the workers concerned have been assisted by organizations such as Kalayaan and the TUC’s affiliated unions. The TUC takes the view that, in most cases, domestic workers will have no knowledge of British labour legislation, including their right to seek a ruling from an employment tribunal, and those workers whose de facto relationship with their employer is one of forced labour are least likely to be able to access such information or avail themselves of the protection offered by an industrial tribunal. A question that has been raised by the TUC is how the Government intends to ensure that all domestic workers are made aware of their rights and what strategies it intends to implement to ensure that those rights can be realised. The Committee hopes that the Government will comment on this statement by the TUC and supply information on the measures taken.

2. The Committee has noted with interest from the Government’s latest report that the new requirements, according to which domestic workers in private households are permitted to change employers regardless of their reasons for leaving their original employer, and that any such change in employer must be reported to the Immigration and Nationality Directorate, were formally incorporated into the Immigration Rules on 18 September 2002 under the title of "domestic workers in private households". The Committee hopes that the Government will supply a copy of these provisions, as well as the information on their application in practice.

II.  Prisoners working for private companies

3. Further to its earlier comments, the Committee has noted the Government’s statement in its 2002 report that the United Kingdom continues to have in place a robust set of rules and regulations to ensure that prison labour is not abused either commercially or otherwise, and that these rules apply with equal force to public and to private persons and workshops; the Government can see no justification for requiring different systems of employment for public or private sector work in prisons, where adequate safeguards against abuse are in place. The Committee has also noted that these views were rejected by the TUC in its response to the Government’s report contained in the communication referred to above. The TUC believes that practical work can and should be undertaken, through tripartite consultation, to explore how the existing requirements of the Convention should be met.

4. While having noted these views and comments, the Committee reiterates that the exception in Article 2(2)(c) of the Convention from the scope of the Convention provided for in this Article for compulsory prison labour, does not extend to work of prisoners hired to or placed at the disposal of private employers (including privatized prisons and prison workshops), even if under public supervision and control. The Committee again refers in this connection to the explanations given in paragraphs 127-143 of its general report to the International Labour Conference in 2001 and in points 5-11 of its 2001 general observation under the Convention, where it pointed out that it is only when work or service is performed in conditions approximating a free employment relationship that work by prisoners for private companies can be held compatible with the explicit prohibition of the Convention; this necessarily requires the formal consent of the persons concerned, as well as further guarantees and safeguards covering the essential elements of a free labour relationship, such as wages and social security, etc.

5. Having also noted the Government’s renewed suggestion in its 2002 report that this matter be remitted for further consideration in conjunction with penal practitioners, the Committee trusts that, with regard to contracted-out prisons and prison industries, the necessary measures will at last be taken to ensure that any work by prisoners for private companies be performed under the conditions of a freely consented upon employment relationship and that the Government will soon be in a position to indicate steps taken to this end.