Domestic Servitude: Exploring the Role of the State in Creating the Conditions for Labour Exploitation

The past twenty four hours has seen a large amount of media attention focused on the issues of domestic slavery, servitude and forced labour, and in particular the legal framework in the UK for dealing with these appalling forms of labour exploitation. Much of the discussion has been around the effectiveness of the criminalisation, investigation and prosecution of such forms of exploitation, through section 71 of the Coroner’s Act 2009 in the UK and the Criminal Law (Human Trafficking) (Amendment) Act 2013 in Ireland. I have previously blogged about States’ positive obligations under Article 4 ECHR to criminalise slavery, servitude and forced or compulsory labour here.

However, the efficacy of criminal law provisions alone in combatting forms of domestic servitude must be questioned, and such provisions must be viewed in the broader context of the restricted employment rights and protections available to domestic workers. This is a particular problem in the UK, where domestic workers are expressly excluded from a number of aspects of employment-related regulation. For example, “domestic servants in private households” are exempted from the scope of health and safety regulation by the Health and Safety Act 1974, as well as certain aspects of working time regulation. Most strikingly, domestic workers who live with their ‘employer’ and who are ‘treated as a member of the family’ may not be entitled to the minimum wage, under Regulation 2(2) of the National Minimum Wage Regulations 1999. This exclusion was upheld and reinforced by the Court of Appeal in its recent decision in Nambalat v Taher [2012] EWCA Civ 124.

The perception of domestic work as somehow ‘different’ from other forms of employment, and of difficulties in applying employment rules in the private domain of the home, was also clear in the UK’s abstention from the final adopting the International Labour Organisation’s 2011 Domestic Work Convention (which attempts to address the gaps in protection experienced by domestic workers). In justifying the UK’s decision to be one of only eight ILO Member States to abstain in this way, the then Minister for Employment Relations (Edward Davey MP) highlighted the incompatibility of the Convention with the approach taken in UK employment law. He queried why the Government would wish to change its system and agree to passing ‘quite an intrusive law’, one that would give to health and safety inspectors a ‘new right to visit millions of homes’.

For undocumented migrant domestic workers, access to law and legal remedies is even more constrained. In a number of recent Employment Appeals Tribunals (Zarkasi v Anindita [2012] UKEAT 0400_11_1801) and Court of Appeal (Hounga v Allen [2012] EWCA Civ 609) decisions involving migrant domestic workers, it has been confirmed that where undocumented workers are willing participants in unlawful employment, their contract of employment is tainted with illegality and they are thus excluded from the protection of almost all protective employment regulation.

It must be acknowledged that the state plays a central role in constructing and reinforcing the vulnerability of those engaged in domestic work, including through the ways outlined above. If the UK Government is serious about addressing this vulnerability, it will need to go far beyond the incorporation of domestic servitude and forced labour into its broader trafficking framework or improving the effectiveness of criminal law provisions. Reform should involve a deeper reflection on the nature of work, the conditions which create vulnerability to exploitation and the divide between the ‘public’ and ‘private’ spheres.

Domestic Servitude: Exploring the Role of the State in Creating the Conditions for Labour Exploitation

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