The Protection of the Health and Safety
of Undocumented Workers in the EU
ELAINE DEWHURST
DUBLIN CITY UNIVERSITY
Introduction
 Who? Undocumented
Immigrants
 How? Response of states
 What and Why?



Current approach
New EU Directive
Way Forward
 Conclusion
Who? Definition of undocumented workers
 Persons who do not have the requisite permission to
work in the State

“illegal workers” / “illegal aliens” / “undocumented workers” /
“irregular workers”
 EU Sanctions Directive


‘illegally staying third-country national’ means a third-country
national present on the territory of a Member State, who does not
fulfil, or no longer fulfils, the conditions for stay or residence in that
Member State
‘illegal employment’ means the employment of an illegally staying
third-country national
 Wide category of persons – enter illegally (whether by
fraud / deception or by trafficking) / enter legally –
subsequently lose permission to remain in the State
(whether through a fault of their own or otherwise)
Who? The statistics
 Between 4.5 – 8 million undocumented workers in
the EU
 Sectors:



Primary
Secondary
Tertiary
How? Response of States
 Criminal penalties e.g. Gangmaster Legislation (UK)
/ Immigration Acts (Ireland)


Penalise employers for hiring undocumented workers
Penalise employees for being undocumented workers
 Three D’s – Detection, Detention, Deportation
 Increased border controls / inspection mechanisms
 Detention facilities for undocumented workers
 Deportation of undocumented workers
 Has it been successful?
 Still have 4.5 – 8 million undocumented workers in the EU
How? Addressing the Pull Factor
 Pull factors are those factors that entice undocumented
workers to a State


An employer that is willing to hire an undocumented worker
Question of mathematics
If risk of getting caught < profit gained from hiring an undocumented
worker => worth taking the risk (pull factor)
 If risk of getting caught >/ = profit gained from hiring an
undocumented worker => not worth taking the risk (no pull factor)


How do we create greater risk / lower profit?
Increase the criminal penalties
 Make undocumented workers as expensive as documented workers
 Giving them employment rights

What? Current Approaches
Full
Protection
Protection
with
Consequences
NonProtection
Non-protection Approach
 Undocumented workers are not entitled to any




employment rights
The enforcement of employment rights (e.g. health and
safety rights) dependent on existence of a valid contract
of employment
Illegal contracts (e.g. Working in contravention of
statute) renders the contract void ab initio
(unenforceable)
No employment rights accrue
Denies undocumented workers


Rights in employment
Access to a complaints mechanism
Reasons for non-protection approach
 Two policy justifications
 Protection


The courts believe that by depriving illegally created agreements,
and in particular contracts of employment, of their legal effect,
they are in fact protecting the sanctity of the judicial process, as
well as protecting regular employees and the State from a lowering
of standards in the terms and conditions of employment
Deterrence

both the courts and the legislature feel that such a policy is the
only way in which to deter irregular workers from taking up
employment on the black market and threatening the security,
both economic and national, of the state. In effect the rule ensures
that the parties to an illegal agreement will never profit from their
actions.
Illegal Aliens
“The only good foreigner
is Rod Stewart!”
Usage of the Non- Protection Approach
 For example, this is the current approach in:
 Ireland
 United Kingdom
 Slovenia
 Austria
 Denmark
 Finland
 Luxembourg
 Portugal
 Sweden
Critique
 Does not take into account the moral culpability of
the parties
 Allows for unjust enrichment of the employer
Effect of Non-Protection Approach
Protection with Consequences Approach
 Some states have limited protection which allows the
undocumented immigrants to claim for certain rights
(such as equal pay)
 This does not prevent the inevitable consequences
i.e. that the state can detect, detain and deport the
immigrant.


States normally either protect only remuneration rights or all
rights
States allow access to complaints procedures so that
undocumented workers can enforce their rights
Rationale for Protection with Consequences
Approach
 The rationale behind this approach would appear to
be based on a recognition that such workers are
entitled to the protections of the law – unjust
enrichment
 Should not be immune from the consequences of
working illegally in a state
Usage of the Protection with Consequences
Approach
 France – protects remuneration rights and provides for a





complaints mechanism
Germany – protects remuneration rights and provides
for a complaints mechanism
Greece – protects remuneration rights and provides for a
complaints mechanism
Netherlands / Greece
Spain - full employment rights protection and provision
of a complaints mechanism
Italy – full entitlement to remuneration and social rights
and provision of a complaints mechanism
Critique
 Recognises unjust enrichment
 If an irregular immigrant knows there are
consequences, they will be very unlikely to complain.
Protection with Consequences Approach
The New EU Approach
 EU Sanctions Directive (2009/52 EC)
Full
Protection
Protection
with
Consequences
NonProtection
A. Policy Shift
 The EU Directive represents a policy shift from
criminalisation and deportation policies - pull factor
approach
 Recognised in second paragraph of Preamble “ A key
pull factor for illegal immigration into the EU is the
possibility of obtaining work in the EU without the
required legal status. Action against illegal
immigration and illegal stay should therefore
include measures to counter that pull force”.
b. Approach
 Protection with Consequences
 Only protects remuneration rights (illegal workers can claim
for back pay, taxes and social security contributions and costs
arising from claiming back pay). Does not protect other
employment rights
 Remedies – Directive states that illegal workers should have
access to an effective remedy – this is a breakthrough
Directly – the worker can take a claim on their own behalf –
recognises the consequences that the worker will face as a result
 Indirectly – the Directive makes provision (Article 13) for another
body to act “on behalf of” or “in support of” an undocumented
worker – is this a full protection approach? – no mention of
confidentiality.

c. Particularly Exploitative Working Conditions
 The Directive states that (Article 9) that it would be a
criminal offence to employ illegal workers in
“particularly exploitative working conditions”
 Definition has a number of elements:
 "particularly exploitative working conditions" means
working conditions, including those resulting from
gender based or other discrimination, where there is
a striking disproportion compared with the terms of
employment of legally employed workers which, for
example, affects workers’ health and safety, and
which offends against human dignity
Elements of the Definition
 Striking Disproportion

No clear indication - £2 v. £10
 Comparator


Legal worker v. Illegal worker
Best possible comparator
 Affects Health and Safety of Workers



Only mention in the Directive (specifically aimed at reducing
exploitation!)
Takes it seriously – criminal offence
Very high level of care
 Offends Human Dignity

Raises bar very high
The way Forward? Full Protection Approach
 The Utopia!
 This is an approach (currently not operating in any EU
Member State) that allows protection but where such
protection does not incur the consequences of detection,
detention and deportation.
 This can be achieved by the establishment of a
confidential complaints mechanism - (attempts at this
have been tried in France and Italy)

Change our complaints systems – adopt new procedures
 Reduces pull factor – more irregular immigrants
complain and get rights, the more expensive they become
Rationale for the Protection Approach
 The rationale behind this particular approach
appears to be twofold:


It is unfair to allow an employer to profit at the expense of an
employee
Such an approach can reduce the “pull” of irregular
immigrants as it makes them a risky and expensive option for
an employer.
Full Protection Approach
Conclusion
 Academics / States / EU Differ – Migrants suffer
 Economic approach – only deals with remuneration
– some criminal penalties for serious breaches of
health and safety legislation
 May not have the desired effect – migrants will not
use this system unless they get caught
 Health and safety rights untouched and protection
undeveloped