Ramsay Hall

Exploitation of people continues to be an issue across many areas of business – including the Scottish construction industry. Police Scotland recently launched a campaign to raise awareness of modern slavery, highlighting construction as a risk sector.

In fact, construction is estimated to account for 18 per cent of forced labour globally; a reminder that organisations operating in the sector should understand what modern slavery involves and take steps to manage the risk.

What is modern slavery and why is construction a risk sector?

Modern slavery, in essence, involves exploitation of individuals for the purpose of commercial gain, and

describes a range of behaviours that can constitute a criminal offence such as slavery, servitude and forced or compulsory labour.

Examples include (1) debt bondage where an individual is forced to work for free to pay off a debt and (2) forced labour, where individuals are pressured via violence and intimidation to work.

The nature of construction work creates a risk of modern slavery:

1. Widespread use of agency and sub-contracted work in large supply chains.
2. A high concentration of migrant workers, many of whom are not fluent in English.
3. Costs and project deadlines – the pressures to complete projects delayed by COVID-19 restrictions means that recruitment drives may be necessary. That in turn increases the risk of modern slavery, whereby those experiencing forced labour may be coerced into seeking work in the sector.

Addressing the risk

There are two risks to be addressed; modern slavery within the workforce and within supply chains.

The Modern Slavery Act 2015 requires certain organisations to publish modern slavery statements explaining the compliance steps they take. Those organisations are ones that (1) supply goods or services (2) operate part of, or all of their business in the UK, regardless of place of incorporation and (3) have a minimum annual turnover of £36million. Even if organisations aren’t obliged to publish statements, they can do so anyway, to demonstrate a responsible approach.

Preparing and maintaining a statement is the first step in compliance. The next step is ensuring its implementation on a day-to-day basis across the organisation and throughout the supply chain. To do that, organisations should have in place:

• Ongoing risk assessments based on the nature of projects, their location and the workforce involved.
• Due diligence on supply chain organisations, including sub-contractors. Supply chain organisations should be held to the same compliance standard as those at the top of the chain, including principal contractors. Contracts should include reference to a right to audit, to monitor compliance.
• Top level commitment to compliance; ideally a senior officer with anti-modern slavery in their remit, who actively monitors and report on compliance.
• Communication to employees – are employees trained in identifying red flags and do they know how to act if they have a concern? Would your teams know for instance that established warning signals include anti-social / withdrawn behaviour, malnourished appearance and / or a single bank account for multiple wage payments? Is there a clear system for reporting concerns to compliance officers?
• A system of regularly monitoring compliance and making necessary adjustments to policies and procedures. COVID-19 may change the risk profile for modern slavery, requiring a review of existing policies and procedures.

What to do if there’s a concern

Concerns should be raised with the senior officer responsible for modern slavery who can decide whether to conduct an investigation. That process may involve legal support to review correspondence, take statements and prepare legally privileged advice, which will include whether the concern should be reported to the authorities.

Police Scotland’s campaign is a clear message that the authorities expect action to address the risk of modern slavery.

Taking steps now sends a positive compliance message to workers, clients and the public, as well as protecting against the risk of a breach leading to investigation, prosecution and reputational damage.

Ramsay Hall is a senior associate in corporate crime and investigations at Brodies LLP