Why UK care homes need human rights due diligence in light of 'bonded labour' allegations.

An article by The Telegraph reveals that care workers recruited from Zimbabwe are being caught in bonded labour schemes in the United Kingdom (UK). The report alleges that care workers are required to pay up to ￡5,000 by recruitment agencies in Zimbabwe if they want to be linked with UK-based care agencies. The care agencies in the UK run by Zimbabwe nationals charge care workers up to ￡4,000 for a Certificate of Sponsorship (CoS). The human resources and global mobility consultancy firm Davison Morris states, "Before an employer can sponsor a migrant worker, they must assign a CoS to confirm that the conditions of the relevant visa have been met. The worker then uses the CoS to make their sponsorship visa application." The UK-based care agencies supply care workers to nursing homes and the National Health Service (NHS) and an article by The Guardian shows that the nursing homes and the NHS are fighting over care workers. The fact that care agencies in the UK are poorly regulated has allowed agencies run by Zimbabwe nationals to take up to 50 per cent of care workers’ wages and on top of tax deductions; it leaves care workers with meagre wages to barely go by. It is alleged that the care agencies in the UK dork wages leaving care workers earning below UK's ￡9.50/hr minimum wage. The Department of Health and Social Care (DHSC) argues that its hands are tied since overseas-based agencies charging fees to place candidates are outside the UK’s jurisdiction.?

The UN Guiding Principles on Business and Human Rights (UNGPs) imposes a duty on States to protect human rights including regulating businesses so that they do not infringe on human rights. Under the UNGPs, the UK government particularly the DHSC has an obligation to regulate UK-based care agencies in order to protect human rights. The jurisprudence of the European Court of Human Rights indicates that a State can be held liable for failing to take adequate measures to protect against adverse human rights impacts from third parties such as business enterprises. Although under UK law a recruitment agency cannot charge a fee for ‘placing’ an employee, the employer is allowed to dock wages for reasonable costs. This seems to be in conflict with the employer pays principle which provides that companies must pay the full costs of recruitment. Furthermore, the Modern Slavery Act require care homes earning more than ￡36 million per annum to produce an annual modern slavery statement. This is meant to ensure that slavery and human trafficking are not taking place in the business or in the business' supply chains.

However, this requirement has been criticized as weak by Ardea International since there are no quality assessments of the disclosures. Also, companies that fail to disclose their modern slavery risks face no penalties hereby making the Act ineffective. The Business and Human Rights Resource Centre (BHRRC) has called for human rights due diligence law in the UK as result of "persistent rights abuses linked to UK companies operating both in the UK and around the world." BHRRC argues that such a law would require companies to take action to prevent human rights risks in their operations or supply chains and hold companies liable for failure to do so.

In the absence of stringent regulation of UK care agencies, the UNGPs also impose a duty on business enterprises such as nursing/care homes to respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved. In order to do this, nursing/care homes should embed a human rights-respecting culture and must make a public commitment to respect human rights approved at the highest level of the business. In addition to this, the NHS and nursing/care homes should conduct human rights due diligence to identify, prevent and mitigate the existence of exploitation in their workforce. Such due diligence would allow the NHS and nursing/care homes to identify and assess actual or potential adverse impacts, track implementation and communicate how impacts are addressed. Furthermore, the NHS and nursing/care homes should engage relevant stakeholders including modern slavery experts in order to raise awareness and build capacity to address exploitation within their workforce.

The UNGPs impose a duty on States and business enterprises to ensure that those affected have access to an effective remedy. The NHS and nursing/care homes that are directly linked to UK-based care agencies run by Zimbabwean nationals should cooperate and, or leverage the setting up of a remediation process for affected victims. The remediation of adverse impacts on victims may include compensation among other things. The NHS and nursing/care homes may also make use of the initiative of HSBC bank which is working with different stakeholders to provide basic bank accounts to survivors of modern slavery. This initiative seeks to help victims break out of exploitation and rebuild their lives. The NHS and nursing/care homes should also set up grievance mechanisms which allow victims to report exploitation. However, it is alleged that UK’s strict immigration regime has also made it difficult for victims to speak out for fear of deportation thereby exacerbating exploitation, therefore such a mechanism needs to take account of the challenges including fear faced by victims. ?