31 October 2014

By Virginia Mantouvalou, Reader in Human Rights and Labour Law and Co-Director of the Institute of Human Rights; UCL, Faculty of Laws

Article 4 of the ECHR prohibits some of the worst forms of labour exploitation. It says that no one should be subjected to slavery, servitude, forced and compulsory labour. The prohibitions contained in the provision are absolute, in the sense that the protection of workers cannot be limited for reasons of economic efficiency, national security or other such purposes. The provision only allows a limited number of exceptions, exhaustively enumerated (compulsory military service, prison labour, service in case of emergency threatening the life of the nation or work that is part of normal civic obligations).

Until a few years ago, Article 4 may have seemed out of date, as most people would assume that we do not have this type of extreme exploitation nowadays, at least not in Europe. Since 2005, a line of judgments of the European Court of Human Rights (Court or ECtHR) have shown that Article 4 is sadly relevant today in the UK and in Europe. The Court has accepted that vulnerable workers, like migrant domestic workers, are sometimes prone to serious exploitation that was classified as ‘servitude’ (Siliadin v France, App No 73316/01, Judgment of 26 July 2005). Domestic workers are vulnerable for numerous reasons, such as the fact that they work in the privacy of the employers’ household and that they are often migrant, so there may be language barriers too. They are also excluded from much labour protective legislation, and are therefore in a situation of ‘legislative precariousness’. There are several examples in the press and in case law, which show how unscrupulous employers exploit domestic workers by, for example, withholding their passports (see, for instance, H Khaleeli, ‘How Domestic Workers Become Slaves’, The Guardian, 6 August 2010; Siliadin, as above).

The case law of the Court post-2005 has imposed a number of positive obligations to state authorities for situations of grave labour exploitation. For example, the authorities have to criminalise employers’ conduct, which can be classified as servitude or slavery; they have an obligation to investigate allegations of abuse, when these come to their attention; they must prosecute the employers who take advantage of the workers’ vulnerability. In fact in 2012, the ECtHR said that the UK violated Article 4 in the case of a migrant domestic worker, exactly because the authorities did not investigate properly her allegations of abuse (CN v UK, App No 4239/08, Judgment of 13 November 2012). Similar state obligations to legislate and enforce the law exist in situations of trafficking for sexual exploitation: human trafficking has to be criminalized; legislation must also be properly enforced through investigations by the authorities when there is suspicion of trafficking; and immigration rules should not be too restrictive so as to allow employers to exercise a great degree of control over the worker (Rantsev v Cyprus and Russia, App. No. 25965/04, Judgment of 7 January 2010). Enforcement of the law in this area is extremely difficult because victims of serious labour or sexual exploitation are very often hidden (domestic workers in private household that cannot be accessed by labour inspectors).

The UK Government is currently in the process of preparing a Draft Modern Slavery Bill, which is supposed to place the country at the forefront of the fight against ‘modern slavery’. So it is of fundamental importance that the UK remains bound by the Convention. It is vital that the ECtHR, which has developed key principles in the area of article 4, constantly assesses compliance with the duties of the authorities for cases of labour exploitation.

But aspects of domestic law have flaws. Of particular concern in this context is the Overseas Domestic Worker visa regime, which is in force since 2012. This visa ties domestic workers to the employers with whom they entered the UK. It makes them in this way uniquely vulnerable to abuse because they cannot change employer even if they are seriously exploited or abused. The control that the employers exercise on these workers may therefore raise questions under Article 4. A separate but related issue involves the rights of undocumented migrants. In English law, because the contract of these workers is illegal, they are not entitled to protection of their contractual rights, but are entitled to protection against discrimination claims, when the worker may have been victim of human trafficking, as defined, inter alia, in Article 4 case law of the ECtHR (Hounga v Allen and Another [2014] UKSC 47 on appeal from [2012] EWCA Civ 609). The so-called doctrine of illegality in relation to contractual claims, though, might still raise issues under article 4, because it gives the employer great power to exploit the worker.

Article 4 is also an important safeguard against exploitation of workers that participate in workfare schemes. These are schemes that make social benefits, like a jobseekers’ allowance, conditional upon acceptance of suitable work. The ECtHR has decided a few cases on this type of arrangements, looking at whether they constitute forced labour. For a form of labour to be considered forced, it must be imposed against the will of the person and under the threat of a penalty (Van der Mussele v Belgium, App No 1989/80, Judgment of 23 November 1983). The Court has said that it may be legitimate for the government to ask that someone who claims an unemployment benefit has first tried to obtain a job. When a state has a welfare system, it is entitled to set conditions on the receipt of benefits: a condition that one seeks ‘generally acceptable employment’ is not unreasonable. This is particularly so when there is a possibility to reject work that is socially unacceptable or the possibility of conscientious objection (Schuitemaker v Netherlands, App No 15906/08, Decision of 4 May 2010).

The UK Supreme Court that has examined a claim on workfare schemes ruled that it does not constitute forced labour (R (on the application of Reilly and another) (Respondents) v Secretary of State for Work and Pensions (Appellant), [2013] UKSC 18), even though it found it unlawful for other reasons. Yet it is not unimaginable that a workfare scheme can go too far and violate the Convention, if for example the job that a jobseeker is required to perform is not generally acceptable, because of very harsh working conditions. The protection of individuals under the prohibition of servitude, forced and compulsory labour, can serve as a guarantee: if a workfare scheme does go too far, there will be judicial supervision at supranational level.

Because article 4 is about the worst forms of labour exploitation – a labour right that is undoubtedly a human right too – it is a crucial safeguard for workers. Withdrawal from the Convention would mean that both Government and private employers could remain unaccountable for serious labour exploitation. Labour exploitation is something that no liberal state should either engage in or tolerate.