The first compliance deadline for the UK’s Modern Slavery regime is now well behind us. Those organisations whose financial end of year was 31 March 2016 must publish their slavery and human trafficking statements covering all the relevant activities undertaken by their organisation during the period 1 April 2015 to 31 March 2016, by 30 September 2016 at the latest.
Registers of slavery and human trafficking statements
There is no UK governmental central register of slavery and human trafficking statements, but, the organisation Business & Human Rights Resource Centre is collating statements in a free searchable database. A number of statements have already been submitted. Whilst some of these statements demonstrate positive and constructive compliance engagement, overall they are of uneven quality, and, some are technically in breach of legislative requirements – for example they have not been signed by company directors (or equivalent).
The database is at http://business-humanrights.org/en/registry-of-slavery-human-trafficking-statements-under-uk-modern-slavery-act. The organisation Unseen UK is also registering statements: http://www.unseenuk.org/.
We understand from the Home Office that it is going to start officially checking slavery and human trafficking statements this September 2016. So if you have already published a slavery and human trafficking statement or you will publish one by this September be aware that you may come under scrutiny soon, if not before by NGOs active in so-called “naming and shaming exercises”. We would of course be happy to review your statements with you.
Amendments to the law
There is already new draft legislation originating in the House of Lords (http://www.publications.parliament.uk/pa/bills/lbill/2016-2017/0006/17006.pdf) to amend the UK Modern Slavery Act 2015 which includes the following amongst its aims:
- To require commercial organisations and public bodies (who under the proposed legislation will also now fall under the UK Modern Slavery Act 2015) to include their slavery and human trafficking statement in their annual report and accounts;
- To require the UK Government to publish, in an easy and accessible place and format, a list that is categorised by sector of all commercial organisations that are required to publish a slavery and human trafficking statement; and,
- To require contracting authorities to exclude from public procurement procedures economic operators who have not produced a slavery and human trafficking statement.
If enacted, this last requirement will add more teeth to the government’s compliance enforcement.
The bill had its second reading on 8 July (http://services.parliament.uk/bills/2016-17/modernslaverytransparencyinsupplychains/stages.html) and now moves to the House of Lords Committee Stage at a date to be announced.
The UK government has also issue issued official guidance and a form for (certain) public authorities as regards their duty to notify the Home Office of potential victims of modern slavery (https://www.gov.uk/government/publications/duty-to-notify-the-home-office-of-potential-victims-of-modern-slavery) – non-governmental organisations are also encouraged to notify.
In passing it is important also to remember that the new Prime Minister, Theresa May, has a personal commitment to the modern slavery legislation and as a result we may see renewed focus on this in government too.
Scotland has also now issued its own human trafficking and exploitation legislation (http://www.legislation.gov.uk/asp/2015/12/enacted) which also provides for future Scottish governmental trafficking and exploitation strategy – there is however no compliance equivalent to Section 54 of the UK Modern Slavery Act 2015.
Slavery has also hit the headlines in the past few months with not only police raids but also various court cases in the UK. The most notable court case is the landmark ruling in Galdikas & Others -v- DJ Houghton Catching Services Limited of 10 June 2016 (http://www.bailii.org/ew/cases/EWHC/QB/2016/1376.html) where the High Court for the first time awarded damages against a business to six Lithuanian workers as regards failure by the organisations in question to pay statutory minimum rates, travel time, job finder fees, failure to provide adequate facilities to wash, rest, eat and drink, and, unlawful deductions made to workers’ pay. The Modern Slavery Act 2015 itself does not provide for such civil claims to be brought – instead various other UK legislation was relied upon in the case – but the slavery context is clear and this matter highlights the fact that slavery and human trafficking enforcement can be brought in the guise of civil claims for damages.
In the US a notable claim brought under legislation including false advertising law but which concerned disclosure under the Californian Transparency in Supply Chain Act 2010 (which has similarities to the UK Modern Slavery Act) was brought against Nestlé concerning cat food using seafood sourced from Thai forced labour. The court dismissed the case at the end of 2015 ruling that disclosure about forced labour in supply chains was limited to what the Californian 2010 Act provides for. The lesson here for businesses in the UK is to ensure that they undertake thorough due diligence on the issue of slavery in their supply-chains and report about this accurately in their slavery and human trafficking statements: (http://webcache.googleusercontent.com/search?q=cache:QArdkkXHELMJ:www.csrandthelaw.com/wp-content/uploads/sites/2/2016/01/Nestle-dismissal.pdf+&cd=1&hl=en&ct=clnk&gl=uk).
Cordery has a Modern Slavery Action solution to help your business prepare and review your Slavery and Human Trafficking Statement. More information about it can be found at: http://www.corderycompliance.com/solutions/modern-slavery-action/
Cordery’s slavery FAQs and a video can be found here: http://www.corderycompliance.com/uk-modern-slavery-human-trafficking-faqs/.
André Bywater is a commercial lawyer with Cordery in London where he focuses on regulatory compliance, processes and investigations.
André Bywater, Cordery, Lexis House, 30 Farringdon Street, London, EC4A 4HH
Office: +44 (0)207 075 1785