Capacity Building

Rights Guide: A short guide to to employment rights for undocumented workers and  employers. Read more

Signposting Document: to provide undocumented migrants with information where they might be able to access help and support.

For Banladeshi Signposting document   signposting(BA)1.docx

For Chinese  Signposting document  Signposting ( Chinese organisations)

 For Turkish/Turkish Cypriot/Kurdish  document Signposting ( Turkish/Turkish Cypriot/Kurdish)

Rights Guide 

This guide has been produced by the UndocNet research team to offer advice and guidance to undocumented migrants and employers. The information contained in it is correct as at February 2012. UndocNet is a research team and is therefore not offering the information in the role of an advice agency. If you need advice on employment rights then you should refer to the Signposting document which has also been produced by UndocNet and which will have been given to you along with this Rights guide.

Employment rights in the UK

As this short guide shows there some fundamental rights to health and safety and non-discrimination which all workers have, even those who are undocumented. In the case of the other basic employment rights described in the guide, employers who want to treat their workers fairly will take them into account when offering work.The guide thus explains what the law says in relation to being undocumented and describes the range of basic employment rights that are set out below

Rights at work

  • The right to health and safety protection
  • The right not to be discriminated against.
  • The right to a minimum wage.
  • The right to breaks and holidays.
  • The right to equal treatment.
  • The right to protection during pregnancy and maternity
  • Rights when sick
  • Rights if dismissed

What is an undocumented migrant?

An undocumented migrant is someone who is in the UK without a right of residency or without the right to work, and who is working. Most people who are undocumented arrived in the UK legally but then either their circumstances changed or they overstayed. It is not difficult for someone to arrive as a documented migrant and then become undocumented. People are considered as undocumented in any of the following conditions:

  • They entered the UK without the necessary papers that would have given the right of entry.
  • They have residence rights in the UK but have had to obtain false papers to obtain work.
  • They entered the UK with papers giving a right of entry but the papers are no longer valid as the time scale has passed but they have overstayed.
  • They entered the UK with papers giving a right of entry but have since changed to work in another job which is not covered by their work permits.
  • They claimed asylum on entering the UK but the asylum claim was rejected and they have remained in the UK.

What does it mean to be undocumented?

Undocumented migrants in the UK generally cannot (with the important exception of health and safety and discrimination) enforce the employment rights which apply to documented workers. This is because the law says that those who do not have a legal right to work generally cannot take their claims to employment tribunals. However, it is still important to know what rights there are. There have been cases where the tribunals have been sympathetic to claims from undocumented migrants.  In the case of Sharma -v- Hindu Temple and others [1991] UKEAT 253, for example, a judge held that a person who was undocumented could win a claim at a tribunal. Second, knowing what the rights are puts both the worker and the employer in a better position to discuss the terms and conditions for the job. In any case, where undocumented workers have false documents and the employer is unaware of this, then they should be getting all of the benefits which documented workers are entitled to.

Right that all workers have

Rights to health and safety protection

Health and safety is a very important issue at work and just because a worker is undocumented does not mean that their employer can put their health at risk. The UK law is clear that regardless of the legal status of the worker, everyone, including undocumented migrants, has the right to have their health and safety protected while at work. The Health and Safety Executive, the UK government body that is responsible for ensuring the safety of UK workplaces, makes it clear in its documentation that the Health and Safety at Work etc. Act 1974 applies to everyone. Employers have exactly the same obligations to undocumented migrants, as they have to documented workers. Employers have to:

  • Remove or control risks to workers’ health and safety in the workplace;
  • Tell workers about any risks to their health and safety connected to the job, and the precautions needed to avoid them;
  • Display a certificate showing that there is Employers’ Liability Compulsory Insurance;
  • Give workers the information, instruction and training they need to work safely;
  • Make sure that workers understand the information they are given – this is especially important if a worker’s first language is not English;
  • Make sure that there is always an experienced supervisor that workers can communicate with;
  • Not allow workers to operate machinery without being trained;
  • Make sure that any equipment workers use is suitable and properly maintained;
  • Provide workers with free protective clothing, including the necessary clothing if they are working outdoors or in cold conditions;
  • Make sure there are adequate toilet and washing facilities and clean drinking water
  • Make sure that workers get emergency first aid if needed;
  • Keep a record of any accidents and in certain circumstances report them to the Health and Safety Executive;
  • Consider any particular risks to women of childbearing age, and take action to prevent or control their exposure to them;
  • Consider the special needs of young people under the age of 18, and take action to prevent or control their exposure to risks to which they are particularly susceptible.

You can find out more about the Health and Safety Executive by going to: www.hse.gov.uk/migrantworkers/index.htm, where you will find more guidance to assist you in protecting health and safety at work – including information in a range of languages other than English. If a worker contacts the HSE (the website has details of how to do this) to complain about unsafe work it will not release that worker’s identity, even to their employer, unless the worker has expressly agreed to this.  Similarly if employers know of any workplaces where the conditions of work are unsafe then they too can approach the HSE in confidence. The HSE employs a number of outreach workers whose job is specifically to make contact with migrant workers and their employers, and the HSE can put you touch with one of them if you want advice or support on health and safety matters.

Rights not to be discriminated against

The law says that employers should not discriminate against their employees on a number of grounds, including their gender, race, nationality, age, sexual orientation and religion.  Even those who are undocumented are protected against discrimination. In a recent case taken by a worker who had knowingly entered the UK on false papers, the tribunal ruled that the bad treatment she had received from her employer entitled her to £6,000 in compensation (Allen v Hounga, EAT/0326/10/LA). For this reason it is always worth seeking more advice in cases of suspected discrimination at work. UndocNet’s Signposting Document provides a list of suggested organisations you can approach. 

Rights that documented workers have

The legal minimum wage

All workers in the UK have the right to be paid at least at the national minimum wage. The current rates are £6.08 an hour if aged 21 or over; £4.98 if aged between 18 and 20; £3.68 if aged between 16 and 18. There are two lower rates but these only apply to apprentices who are in training. Those getting the national minimum wage pay tax and national insurance on what they earn. For example, a person working 40 hours a week on the national minimum and with the right to the minimum holidays set down in law (see below) would earn around £12,700 a year and would have around £1,430 in tax and national insurance deductions. This means that the documented worker on the national minimum wage would have an hourly take home rate of around £4.98. If employers provide accommodation they are allowed to deduct up to £33.11 a week from the national minimum wage which means that workers on the national minimum wage provided with accommodation by their employer would take home around £4.15 an hour. Use this figure to compare it to the wage in your workplace or establishment. This will give you a good idea of whether there is underpayment.

Rights to holidays

The law says that all workers should have the right to at least 5.6 weeks paid annual leave, which amounts to 28 days in the year for someone working five days a week. In cases where workers are undocumented they may not be able to enforce this legal right in the courts but this does not mean that they should not have any holidays. Breaks from work are considered as necessary to protect workers’ health and safety and this means that workers might be able to take claims where they are not being allowed any paid holidays. Furthermore holiday rights are based on European law which makes no reference to the rights applying only to those who are documented.

Rights to breaks during the working day and in the course of the working week

The law also says that workers should have the right to:

  • A break of at least 11 hours (12 hours for workers under 18) between the end of one shift and the beginning of the next; and
  • At least one day a week (or two days a fortnight) off work.

These breaks from work are considered as necessary to protect workers’ health and safety and employers not guaranteeing them would not be protecting their workers’ health as again these rights are based on European law which makes no reference to the rights applying only to those who are documented.

Other rights at work

There are number of other employment rights. While these apply to documented workers, they are set out in brief below to give you an idea of the range of rights that there are for employees. Knowing what they are will give you useful information when employers and workers are discussing any of these issues, for example if where workers are pregnant or if sick.

Maternity, paternity and adoption pay: The law says that women who are pregnant and the parents of young children have the right to time off work and also the right to be paid at 90 per cent of pay for the first six weeks and then at £128.73

Sickness pay: The law says that workers who are off sick for more than three days should receive no less than £81.60 a week.

Protection against unfair dismissal: Employees have the right not to be dismissed other than for fair reasons (for example if they have broken the works rules or are not competent). The right currently applies after a year’s service although from April 2012 this will increase to two years.

Sanctions against employers

The law provides for sanctions against employers who employ undocumented migrants. These can amount to up to £10,000 for each worker employed. While this seems like a large amount, in practice very few employers have been fined under the legislation. Furthermore where they have asked to see documents which look genuine and which indicate that the worker has the right to work in the UK then this provides a defence to the charge of employing undocumented migrants.  At European level there is a new law which, while imposing sanctions on employers (as with the UK law), also states that undocumented migrants must be paid at least the national minimum wage, even though they are working without permission and that law says that the courts will force the employer to pay any shortfall in back pay. At present the UK government is refusing to adopt the European law because it does not want workers to have this right.

HSE can force employers to stop work that puts workers’ health and safety at risk, and to make improvements within a set period of time.  HSE also has power to prosecute employers, and fines of up to £20,000 for each offence can be imposed if the employer is convicted by a Magistrates’ Court – the fines can be unlimited on conviction in a higher Court. 

 

 

 

Signposting Document

The research team have prepared this short document to provide undocumented workers with information on where they might be able to access help and support.






Name

 ADDRESS

 Email/Tel/ webiste


 

Joint Council for the Welfare of Immigrants (JCWI)

115 Old Street
London
EC1V 9RT

 020 7553 7470

10AM to 1PM, Monday, Tuesday, Thursday

(free, confidential advice line for undocumented workers)


 

Samaritans

46 Marshall Street,

London

W1F 9BF

 

020 7734 2800

08457 90 90 90

jo@samaritans.org


 

Praxis Community

Projects

Pott St

London

E2 0EF

020 7729 7985

www.praxis.org.uk


 

Migrants Resource

Centre

24 Churton St,

London, SW1V 2LP

 

020 7834 2505

 www.migrants.org.uk

 


 

CARIS Haringey

St Ann's Church Hall

Avenue Rd.

London

N15 5JH

 

020 8800 5300

http://www.carisharingey.org.uk/

 

 

 

Project: London

Praxis, Pott Street, London E2 0EF

020 8123 6614

 020 7613 4106

1PM to 6PM, Monday, Wednesday, Friday (free medical support)

 

 

Law Centres

To be found across London

020 7842 0720

http://www.lawcentres.org.uk/

 

 

BANGLADESHI

 

 

 

 

Bangladesh Welfare Association Croydon

 

321 Bensham Lane,

Thornton Heath,

Croydon

CR7 7ER

020 8684 0272

bwac786@googlemail.com

 

 http://www.bwelfare.org.uk/

 

 

Islington Bangladesh association

71 Caledonian Road

London 

N1 9BT

 

020 7833 0591

http://www.ibal.org.uk/

 


 

Wapping Bangladeshi Association

Wapping Youth Club (1st Floor)