This article is by Natalie Sedacca, a PhD Candidate and Teaching Fellow at UCL Faculty of Laws. Her research focuses on the intersection between labour rights and human rights in relation to domestic workers with two case studies, Chile and the UK.
The 16th of June is International Domestic Workers’ Day and marks the eight year anniversary of the International Labour Organisation’s Convention 189 on the rights of domestic workers (‘C-189’). This was a seminal date in the history of a sector marked by devaluation of work and a lack of labour rights. Yet the UK has not ratified C-189, a failing reflected by the fact domestic workers are, in some cases, exempt from some key labour rights applying to workers in other sectors. In addition, migrant workers in this sector are subject to a specific visa regime that increases their vulnerability to exploitation and abuse. The UK must pay close attention to the problems faced by these workers, including learning from countries which have ratified C-189 such as Chile, explored below.
The Overseas Domestic Worker visa – short term stays that encourage dependency
Migrant domestic workers in the UK are often from non-EU countries such as the Philippines, India and Indonesia, and must obtain a specific type of visa for work in this sector – either a Diplomatic Visa for those working in a diplomatic household, or otherwise an Overseas Domestic Worker (ODW) visa. The worker must already have been working for that employer for at least a year before accompanying them to the UK (R159A of the Immigration Rules).
Reforms to the visa system in 2012 introduced a tie between the visa and the employer, making the worker’s right to work and remain in the UK dependent on the continued contract with their specific employer. This tie made it much more difficult for a worker to enforce rights at work and / or leave employment if conditions were poor. Research in 2014 by the migrant domestic worker organisation Kalayaan found that 45% of those working under pre-2012 non-tied visas had no day off, whereas, strikingly, all those surveyed working on the tied visa lacked a day off. Likewise, Mantouvalou’s study of migrant workers who had escaped their original employers found that they had been working 12-20 hours per day, and an independent review of the OWD visa in 2015 found that it lead to a lack of bargaining power, a sense of ‘being “owned” by an employer, or at least being trapped,’ and the risk of creating a large class of undocumented workers who lack legal protection.
This review therefore recommended, among other points, a right to change employer within the sector that was ‘not conditional upon claiming or proving any form of abuse.’ The government responded in 2016 by allowing those on an ODW visa ‘the ability to take alternative employment as a domestic worker with a different employer during the six month period for which they are originally admitted’ [emphasis added].
In practice, this does not implement the independent review’s recommendations in a meaningful way. As noted by Kalayaan and by Lord Hylton, without a right to renew the visa the same problem will remain: it is likely to be difficult or impossible for a domestic worker to find a new role when they have only months or even weeks remaining on their visa. This can leave them with little choice but to stay in abusive or exploitative employment situations. This highlights that it is not just the tied nature of the visa that poses a problem, but also crucially the fact that it is short-term and generally non-renewable, designed to deter long- or even medium-term residence, and therefore still tied in practice.
Some Overseas Domestic Workers prevented from working after being found to be potential victims of trafficking
There is a limited exception to the non-renewable nature of the ODW visa when a domestic worker is identified as a (potential) victim of modern slavery or human trafficking in R159I-J of the Immigration Rules. The fact that a right which should be accessible across the board is restricted to these specific circumstances is problematic, and there are also serious shortcomings even for those that fit within this category. Empirical research I carried out for Kalayaan involving interviews with 21 workers, which is summarised in this blog post, demonstrates a particular flaw: the fact that some of those identified as potential victims of trafficking are denied permission to work while awaiting a final decision on their status, which can take months or even years. The research finds that the factor determining whether or not an individual in this position has permission to work is arbitrary and relates to factors that are generally outside the worker’s control, and that those who lacked permission to work reported being pushed into destitution and / or informal working, which was often degrading, exploitative and lacking in defined hours.
Beyond these specific points on slavery and trafficking victims, there is an urgent need to reform the visa system more broadly, allowing all workers the possibility of extending their visa beyond the initial six month period – without which the removal of the tie to the employer is basically illusory. As highlighted in the recent FLEX report, short term and non-renewable visas make workers vulnerable to exploitation: having a high turnover of workers all with only short term stays has a number of negative implications, from making it more difficult to join a union to impeding possibilities for family reunification.
The labour law position – a lower standard of protection for domestic workers
As well as the visa scheme making it more difficult for domestic workers to access or enforce rights, there are also deficiencies in the level of rights protection formally available to such workers. At present the National Minimum Wage can be disapplied in relation to ‘work relating to the family household’ – the definition of such work includes that the worker lives at their employer’s family home and is treated as a member of the family ‘in particular as regards to the provision of living accommodation and meals and sharing of tasks and leisure activities’ (s57 of the National Minimum Wage Regulations). This shocking exemption, which reflects the devaluation of work carried out by women in the private sphere, is subject to an ongoing legal challenge.
Workers ‘employed as a domestic servant in a private household’ are also excluded from a number of the key limitations on working time, including the maximum average working week of 48 hours (s19 Working Time Regulations) and from provisions on workplace inspections that apply in other settings (s51 Health & Safety at Work Act). And while labour regulation in the UK suffers more broadly from a lack of labour inspection and enforcement, these issues are particularly stark in the domestic work sector when taken together with other factors: the isolation of being in a workplace usually consisting of one person, low levels of unionisation and – for migrant workers – the difficulties enforcing rights as a result of visa restrictions.
While the UK lags behind, other countries are improving their standards
In December 2012, a joint letter from Anti-Slavery International, Kalayaan, Justice for Domestic Workers (now Voice of Domestic Workers) and the Trade Union Congress called on the UK government to ratify C-189, but more than six years later there is no sign of this being realised. In the meantime, it has now been ratified in total by 28 countries, many of which are in Latin America. My PhD research, in part, is exploring the situation in Chile which ratified C-189 in 2015. While Chile had previously seen a number of relevant reforms from 2008 onwards, substantial legislative changes were made alongside ratification, including on the area of working time, deduction of accommodation and food costs from salary, and uniforms worn in public.
These reforms are an improvement to the former situation and were supported by the domestic workers’ union federation who were involved in campaigning in their favour. That said, some difficulties remain – for example, although live-in workers are now entitled to rest on Saturdays (subject to accumulation, splitting or changing for another day with agreement) as well as on Sundays, they are not subject to the same limits and set hours as live-out domestic workers. Chilean sociologist Fernández has described shortcomings in the new law as giving ‘continuity to the culture of servitude’ despite also recognising it as an achievement. Likewise, limitations on inspection remain – entry to a private home is only permitted if the employer agrees, and they otherwise have the option of attending labour offices with required documentation. The union is campaigning for further reform including in the area of inspection.
Ratification of C-189 is needed but it should be seen as a floor not a ceiling
The 2012 joint letter to the UK government seeking ratification of C-189 pointed to the convention’s ‘considerable degree of flexibility.’ The Chilean example reflects this flexibility, given that rights have not been entirely equalised. On one hand, this demonstrates that concerns about ratifying the convention because of the burden it would impose are unfounded. On the other hand, it shows how C-189 can be interpreted in a way that is perhaps too flexible, meaning challenges beyond ratification remain. As recently noted by Blackett, an expert on domestic labour who was involved with the agreement of C-189, ‘despite the tremendous amount that has been accomplished… the depth of the challenge may still be underestimated.’
In this sense, ratifying C-189 and incorporating its provisions into domestic law should be seen as a starting point – a floor rather than a ceiling – and the process of ensuring that such rights are enforced as an ongoing process, in which domestic workers and their organisations must play a central role. To begin this course, the UK should urgently ensure that all domestic workers are entitled to the minimum wage and subject to defined limits on their working time, as well as fundamentally revising the visa scheme to allow for the possibility of renewal and fully removing the tie to the employer. International domestic workers’ day should bring a renewed impetus to end the current situation, in which an overwhelmingly female and migrant section of the working population can be denied the most basic working rights and further exposed to exploitation through unfair visa conditions.
With thanks to Natalie Sedacca for authoring this blog. Find her on Twitter @nataliesedacca.