Adrian Henderson, an associate in the health and social care team at RWK Goodman, provides legal insight on following ethical recruitment practices.

Since the business immigration reforms that followed the ending of free movement of labour in 2021, there has been an increased focus on ethical recruitment across the health and social care sector. In part, this has been triggered by worrying reports of unethical practices and instances of modern slavery linked to the ever greater reliance on foreign labour throughout the sector. Unseen UK one of the country’s leading modern slavery charities released findings last year that revealed that labour exploitation in the care sector went up by 606% between 2021-2022.

There is no doubt about the presence of bad faith actors and criminal organisations posing as legitimate care providers and third party recruiters currently at work in the industry. While pressures faced by the sector can understandably tempt care providers to adopt a less than thorough approach to recruitment while the quality of third-party recruiters can be inconsistent, the potential civil sanctions not to mention criminal penalties under the Modern Slavery Act 2015, are potentially ruinous for those found liable.

One of the most common tricks employed by purveyors of labour exploitation is financial exploitation, specifically the practice of so-called “debt bondage”. This is when an extortionate and unpayable debt is fostered upon a worker often through unlawful means such as levying a charge for finding work (a practice banned under Employment Agencies Act 1973), for the sole purpose of tying that individual to an employer for little or no money.

On a similar but less malevolent vein, employers should be careful about recovering costs linked to international recruitment from their sponsored employees. Home Office rules are clear that while ancillary costs such as travel and accommodation can be recovered, business costs such as the immigration skills charge cannot. If employers do choose to recover permitted costs, they must be fair and should never result in debt which cannot reasonably be repaid. If deducted from the employee’s salary employers need to ensure it does not result in a breach of  the minimum salary requirements for sponsorship or national minimum wage rates.

Helpfully, the government’s Code of Practice for the international recruitment for health and social care personnel in Englandprovides useful guidance on ways to avoid sleepwalking into such difficulties. These include ensuring robust practices and procedures are in place such as reporting lines for abusive practices, safeguarding and full involvement by the employer in the recruitment process when using agencies and third party recruiters. Also contained in the code is the Ethical Recruiters List, a full list of government approved legally and ethically compliant organisations active in international recruitment in the care sector.

Following the code of practice will strengthen employers’ pastoral responsibilities to their workers which in turn can reduce turnover and improve retention. This should be considered alongside the general sponsor licence compliance duties such as record keeping, reporting and correct pre-employment safeguarding and right to work checks. Compliance with these duties is fundamental to licence holders retaining their ability to continue to sponsor migrant workers and to remain on the correct side of the law.