Small-boat migrants working illegally in Britain may be able to sue their employers for harassment under strengthened workers' rights laws, according to new guidance from the Equality and Human Rights Commission (EHRC).
The guidance, issued following the commencement of Angela Rayner's Employment Rights Act on Friday, details employers' obligations to prevent harassment.
Businesses are now required to take "all reasonable steps" – a higher threshold than the previous "reasonable steps" – to prevent sexual and other forms of harassment against employees. The EHRC guidance explicitly includes the scenario of a "migrant worker without a valid work permit" to illustrate how harassment claims can be pursued.
According to the EHRC, "The fact that a contract of employment is illegal will not normally prevent a worker pursuing their harassment claim" under these laws. If an employer fails to take "all reasonable steps," a tribunal can hear a claim even from a worker without a valid permit.
The guidance offers an example: a migrant worker without a permit is harassed by a colleague. Even though the employment contract is illegal due to the lack of a work permit, a tribunal can still hear the harassment claim. The EHRC notes that while the employment may have provided the opportunity for harassment, the harassment itself was not solely dependent on the employment status.
Under the new legislation, companies can be held liable for harassment perpetrated by third parties, including customers and contractors, if they have not taken adequate measures to prevent it. Employers face potential claims and uncapped compensation if found not to have taken all reasonable steps to prevent harassment related to protected characteristics, such as age, disability, race, religion, sex, sexual orientation, and gender reassignment.
This development follows a case in September where a Malaysian migrant without a legal right to work in the UK received over £5,000 after a successful employment tribunal claim for race, sex, and disability discrimination. The hotel manager, Erin Ong, who lacked a work permit, was awarded the payout after an employment judge ruled she was discriminated against by being forced to work in conditions that aggravated her asthma, being required to show her passport, and being dismissed for refusing accommodation changes.
A government spokesperson stated that the recent changes "mean employers must take stronger action to make sure everyone can feel safe at work."
However, Shadow Home Secretary Chris Philp criticized the development, calling it "farcical" and stating that Labour "should be stopping the boats and securing our borders. Instead, they are handing out even more rights to illegal immigrants."