UK Home Office over-reaches itself on Modern Slavery Act
We got a letter from the Home Office last month reminding us, no doubt in common with many others, of our obligations under the Modern Slavery Act 2015. Perhaps you did too. Apparently, it is going to publish a name-and-shame list of non-compliant organisations after an audit at the end of March 2019.
The letter was a bit of a step up from the Government Guidance on the MSA, since it was almost entirely properly spelt and contained only one glaring grammatical error in two pages of large type. However, it continues to peddle assertions about what the MSA requires employers to do which simply do not appear in the statute and are therefore very misleading.
In particular, under the heading “Compliance Checklist”, the letter states that for an employer “to meet the minimum legal requirements”, previous statements should be maintained on its website “so that progress can easily be monitored”.
Let us be clear here – the aims of the MSA are laudable, and having to print something on the point will no doubt have directed a number of senior minds towards issues of slavery and human trafficking where that might not otherwise have been the case. So far, so good. However, there is nothing in the MSA which requires either the maintenance of previous versions online for comparative purposes, or indeed the making of any “progress” at all. Remember that this is an obligation which can be fully satisfied at law (section 54(4)(b) MSA) by a statement that the business has actually done nothing at all to combat slavery and human trafficking in its supply chain. Updating that would be fun – “Nope, sorry. Still nothing going on here”.
The letter also refers to what constitutes a “good statement”. At risk of being a bit of a lawyer about this, there is no such thing as a “good” MSA statement. There are no points for presentation, style or artistic endeavour. It is either legally compliant or it is not. Ignoring that for the moment, we are told that a “good” statement should “demonstrate progress by setting and reporting against clear targets”. However, for most relevant employers without realistic exposure to slavery and human trafficking in their supply chains (especially professional services businesses with very limited operations in manufactured goods, foodstuffs, etc) that is impossible in practical terms. A target for what?
When the MSA was first introduced, a client relying on similar wording in the Official Guidance queried whether it would be better actually to hold off taking some measures at that time in order that it would have something to add in later years as “progress”. In other words, the Guidance was actually deterring people from doing all they could as soon as they could. The answer to that question is no – if you have done all you intend to do as a business in this respect, you need not fear snarky letters from the Home Office if thereafter you just stick with it. Of course, the “threat” in the MSA is supposed to be not legal enforcement, but the reaction of candidates, procurement people, shareholders and journalists who are upset that you are not doing more. That said, although as predicted the press spent some fun days combing through high-profile gender pay gap statements, I cannot recall any coverage of any sort from any source about some particularly weak-kneed MSA statement.
This is not at all to criticise the aims of the MSA. Nonetheless, if the legislature had wanted it to include obligations to make progress annually, and to retain earlier editions online, then it could and should have said so. The Home Office should not be waving threats of naming-and-shaming at businesses in relation to obligations which actually do not exist.