The International Labour Organization (ILO) estimates that 21 million people are in forced labour today. If you are thinking “not in my backyard”, think again. The ILO estimates that 1.5 million of these victims are in Europe or North America (http://www.csmonitor.com/World/2015/1026/Modern-slavery-Labor-trafficking-is-everywhere-and-nowhere). And if this still remains nothing more than another statistic, granularity may be found in the fact that in 2013, 181 years after slavery was abolished in the British Empire, there were 1,746 reported cases of slavery in the UK. Statistics for the US are not available but estimates of victims run from hundreds of thousands to millions.
Research demonstrates that while the sex trade makes up a significant part of the population of those in forced labour, victims are also found in areas such as agriculture, support services and construction.
So what new can be done about it?
In the UK in 2015 The Modern Slavery Act was enacted. In addition to creating new criminal offences of slavery and human trafficking the Act also imposes an obligation on commercial organisations with annual turnovers of more than £36 million (approximately $50m) a year to make an annual statement setting out what steps it has taken to ensure that human trafficking and slavery are not taking place in any of its supply chains or any part of its own business. Alternatively the commercial organisation may make a statement that it has taken no steps.
Statements, when made, must include amongst other things, information about what due diligence the organisation has undertaken and what steps it has taken to mitigate the risks of slavery and human trafficking.
Failure to make any statement at all can result in an application being made by the Secretary of State for an injunction to force the commercial organisation to comply (sec 54).
Clearly the expectation of the legislature is that for those organisations who are not minded to take this matter seriously – a very large number are – the risk of public shame will drive them to do the right thing and therefore there was no requirement to create a further criminal offence and a resulting financial sanction.
In addition to public stigma the Act may increase opportunities for victims to bring civil actions and in this way increase the prospects of it achieving the legislature’s policy objective.
For while the Act does not create a civil right of action, claimants could allege tortious unlawful act conspiracies against organisations in circumstances where they fail to take any steps, and therefore do not make any statement, or where they openly state that they have taken no steps to mitigate such risks.
Liability may also arise if the commercial organisation takes action to investigate supply chains and mitigate risk and that action is undertaken negligently or with insufficient resource, or if the results are ignored.
Evidence of intent to cause harm could be inferred or alternatively be based on a reckless disregard of the claimant’s rights. The evidential basis for this claim would be the fact that the commercial organisation deliberately failed to comply with statutory guidance which would, if followed, have identified the risk.
Group Litigation Orders could be used to facilitate “class actions” by adversely affected claimants.
Fear of the public relations consequences of such a claim should impact on those who are recalcitrant or simply do not care and force them into considering how they will comply.
In addition to movement in the UK there has also been movement in the US. Class actions in this context whilst rare have been brought, but have only thus far been successful in the context of acts physically occurring within the US.
On Monday the 11th of January 2016 the US Supreme Court denied an appeal by Nestle, Cargill and Archer Daniels Midland Co without comment. In consequence a class action claim, brought by three plantation workers from the Ivory Coast alleging that the companies had facilitated human rights abuses through business relationships with Ivorian Coast farmers, was allowed to proceed. There remains a considerable road to travel for the plaintiffs to achieve recovery, including proving sufficient nexus with the US, but the fact that the appeal was not allowed is significant.
Damage claims in the United Kingdom will hopefully never reach the levels of those found in the US, but the potential for victims being able to bring civil litigation in both must be regarded as a positive driver in dealing with this pernicious and corrosive trade.
By Bill Waite
Group Chief Executive Officer
This article was first published on the FCPA Blog.