We weren’t very nice on this blog about the original Government Guidance on the Modern Slavery Act, largely because it really wasn’t very good. It lacked detail where structure would have been helpful, regularly confused aspiration with legal requirement and contained altogether too many uses of the word “remediation” for a document singing the praises of writing in simple language.
So now there is an updated version based on the Government’s experience since the MSA was introduced in 2015. “This refreshed Guidance”, says Home Secretary Amber Rudd in the Foreword, “lays out our expectations for these statements including more explanation of what practice looks like”. Ok, so is it any better?
Yes and no, but mostly no. It retains the same inability as the last version to distinguish properly between the noun practice and the verb practise, or between remedy and remediate, or to decide whether words like organisation or business take the singular or plural and just stick with that decision all the way through the paragraph, let alone the whole document. Given that the legislation expressly only applies to any entity carrying on a business or part of a business in any part of the UK, it is regrettable that the revised Guidance also still feels the necessity to suggest that the “common sense approach” to be adopted by the Courts in enforcing the legislation will include finding “that organisations that do not have a demonstrable business presence in the UK will not be caught”. In relation to any more factually vexed background, however, there is no new help as to which way the Court would go.
The new Guidance also still contains a number of assertions quite unsupported by the actual wording of the MSA: “Organisations will need to build on what they are doing year on year”; “Organisations should look to keep historic statements from the previous years available online even when new statements are published”; “Businesses have a responsibility to ensure that workers are not being exploited”; and “Organisations do still have a legal duty to drive out poor labour practices in their business”. This is all very worthy but simply not what the MSA actually says. The last is particularly contentious because the very preceding paragraph accepts that it is not always clear at that point poor working practices seep into human trafficking or forced labour.
On the plus side, if you look hard enough, there are some useful clarifications of where the boundaries of the employer’s legal obligations actually lie (my emphasis in each case): “The Act …does not mean that the organisation must guarantee that the entire supply chain is slavery-free”; “Legal compliance does not turn on how well the statement is written or presented (provided that it sets out the steps taken or that no steps have in fact been taken)”; “It is up to each business how detailed they want their policy on Modern Slavery”; and “It is important to note that the Modern Slavery Act requirements do not require any organisation to amend existing policies or to introduce new policies”.
But despite the promises in the Foreword, there is precious little new here about what your MSA statement should say. A number of references are made to the desirability of greater detail, which might imply that some existing MSA statements have been seen as big on noble sentiments and thin on practical steps. It also contradicts the statement above that the degree of detail is for the employer to decide. Employers in search of more granular inspiration for contents are pointed to considerations in relation to their business sector, any seasonal aspect to their work, the countries from which they source their good or services, the make-up and complexity of their supply chains and the existence of worker representative bodies.
Other questions to be seen to consider might be the extent by which any applicable minimum labour standards are exceeded, how responsible officers in the business are financially incentivised and resourced to do the Right Thing in MSA terms, the checks to be made on prospective suppliers and in particular, how the business factors “legal and fair labour costs into production and sourcing costs to avoid the need for seemingly cheaper slave or bonded labour in operations or the supply chain” (sic). Much like the Evening Standard’s current campaign in relation to car wash businesses, for example – if you pay £5 to have four people clean your car in fifteen minutes, just mathematically how can they be getting at least the national minimum wage? If you can’t see how your supplier is making a profit on its contract with you without under-paying its staff, the Guidance expects you to look into that and ultimately, if the supplier won’t play ball, to ditch it.
Businesses should also record their examination of any internal procedures to avoid making demands of suppliers or subcontractors which might force or tempt them into cutting human rights corners to meet them, such as delayed payment, late orders or high-pressure deadlines.
There are of course many arguments in favour of a fuller MSA statement. The Act’s aims are very laudable and it is probably right that actual and would-be investors, employees and customers of your business should be able to form a reasonably informed view. But at a purely legal level only, don’t worry – the requirements of the Act to achieve complete compliance are very much less than this new Guidance would have you believe.