Elementos paratextuales

CHAPTER ONE

Context, Aims and Objectives, and Research Questions

1.1 AIMS OF THIS CHAPTER

The aims of this chapter that sets the pace for the research on the plights of domestic workers in the UK are to (a) define domestic work (b) contextualise the problems of domestic workers (c) explain what motivated this research and (d) outline the aims and objectives of the thesis as well as the research questions.

1.2 GENERAL INTRODUCTION

On the face of it, other than fitting into an umbrella of works that are performed predominantly within the household, there is no single definition of domestic work.¹ The link between the household and domestic work featured in the ILO (1951: page unknown) description of a domestic worker as a ‘‘wage earner working in a private household under whatever method and period of remuneration, who may be employed by one or several employers’’. This description differentiated between someone who performs domestic work for his/her family and a paid worker who may not be a member of the family. The problems facing domestic workers in the UK and around the world are not contemporary but something that has been going on for ages. It is therefore not strange that the plight of these workers has been studied extensively (Amnesty International, 2007; Anderson, 2000; Delap, 2011; Hiller

& Saxtein, 2009; HRW, 2014; ILO, 2013; Kalayaan, 2014; Lutz, 2012; Parreñas, 2001). But, the impact of law on the problems of the workers and the role of law in solving them has yet to be fully explored.

1 For more on the difficulties in defining domestic workers, see D’Souza, A (2010) Moving toward Decent work for Domestic workers: An Overview of the ILO’s work, Working Paper 2 / 2010, ILO Bureau for Gender Equality, p. 9

2

Domestic workers worldwide first gained international attention around 1936 when the ILO voiced concern that convention (No. 52) ² adopted by the International Labour Conference (‘‘ILC’’) excluded domestic workers from the right to six days of paid leave that was available to workers in the manufacturing and a range of other industries. To set a framework aimed at regulating domestic work worldwide, ensuring decent work for them, alleviating their problems, and providing them with better legal protection, the ILO has enacted a series of resolutions and has called on signatory States to ensure a better deal for domestic workers.³ The ineffectiveness of previous measures prompted the adoption of Convention 189 in 2011. The Convention, that sets the current framework for the protection of domestic workers worldwide, has been ratified by several countries including Italy and Germany, but the UK Government is yet to recognise it. ⁴ Whilst the UK Government has consistently maintained ODWs in the UK are well protected by law,⁵ evidence available in the literature shows the ODWs remain excluded from some important aspects of the employment law,⁶ health and safety protections,⁷ and working time regulations. There is also evidence that they are continually exposed to a wide range of hazards, abuse and exploitations (HRW, 2014;

Kalayaan, 2014; Sargeant, 2014). In addition, domestic workers are barely protected by law (ILO, 2013); there is evidence to suggest employers often disregard their domestic workers’

human rights (Albin and Mantouvalou, 2012), discriminate against them, and expose them to servitude, exploitation, and abuse (HRW, 2014).

2 ILO: Resolution concerning Holidays with Pay for Domestic Servants, submitted by the Committee on Holidays with Pay, International Labour Conference, 20th Session (Geneva, 4–24 June 1936)

3 In 1948, the ILO adopted a resolution concerning the conditions of employment of domestic workers (see ILO:

Record of Proceedings, International Labour Conference (ILC), 31st Session, 1948, Appendix XVIII:

Resolutions adopted by the Conference, pp. 545–546); In 1965, it adopted a resolution calling for active action on the working condition of domestic workers (see ILO: Official Bulletin (Geneva), July 1965, Supplement I, pp. 20–21); In 1970, ILO published the first survey ever on the status of domestic workers across the world; (see ILO: The employment and conditions of domestic workers in private households: An ILO survey, International Labour Review, Oct. 1970, pp. 391–401)

4 ILO (NORMLEX): Ratifications of C189 - Domestic Workers Convention, 2011 (No. 189).

5 See for instance UK parliament – House of Lords Hansard, Migrant Domestic Workers, 4 June 2013, Column WA173.

6 See Regulation 2(2) of the National Minimum Wage Regulations 1999 No. 584. Further discussion on ODWs entitlement to the minimum wage is available at chapter seven of this thesis.

7 See section 51 of the Health and Safety at Work etc. Act 1974, c.37

3

However, the assertion that domestic work that is widely performed by millions of men, women, and children around the world ‘‘is rooted in the global history of slavery, colonialism and other forms of servitude’’ (ILO, 2010:1), underscores the aspect of natives and migrants who willingly perform domestic work; it could explain the complexity in dealing with the problems facing modern day ODWs. Linking domestic work to chores that are performed by the less privileged in society immediately undermines the significance of the job (Anderson, 2001) and diminishes the status of those doing it (Delap, 2011). The stereotype of domestic workers may have contributed to the inaction or shortcomings of policymakers to enact measures to improve their employment rights, regulate domestic work, and extend all the legal protections that are available to the other workers to them. As such, despite their longstanding problems, the plight of domestic workers is often considered less important by policymakers (Schwenken, 2005). Consequently, the negative experience of domestic workers worldwide, continues unabated (ILO, 2013; Kalayaan, 2014). Thus, ‘‘while the rights of domestic workers are expanding in international law, including through the adoption of the ILO Domestic Workers Convention 2011, migrant domestic workers remain particularly vulnerable to employment-related abuse and exploitation’’.⁸ Despite the abolition of slavery,⁹ the adoption by the United Nations (‘‘UN’’) general assembly of a declaration on the granting of independence to colonial countries and peoples,¹⁰ and the end of colonialism in Europe between 1946 and 1976,¹¹ contemporary domestic workers in the UK are not in a better position than their Victoria era counterparts who were hardly recognised as workers, unprotected by law, stereotyped, and often treated with prejudice (Davidoff, 1974; Delap, 2012).

8 Murphy, C (2013), The enduring vulnerability of migrant domestic workers in Europe, I.C.L.Q. 2013, 62(3), p.599

9 The Slavery Abolition Act 1833 (citation 3 & 4 Will. IV c. 73)

10 UN General Assembly, Declaration on the Granting of Independence to Colonial Countries and Peoples, Resolution 1514 (XV) New York, 14 December 1960

11 See Grossman, H.I. and Iyigun, M.F (1997) Population Increase and the End of Colonialism, Economica, New Series, 64(255), pp. 483-493

4

Further to the inherent difficulty in accepting domestic work as just another kind of paid job (Anderson 2001), the private nature of the household remains one of the factors that hinder the regulation of domestic work (Gower, 2012), increase the workers’ invisibility to the public, reduce their protection in the labour market, and complicate their plights (ILO, 2013).

The unusual nature of the household as a workplace creates friction between public and private law. On the one hand, because the household is a private family unit, the Government is unlikely to legislate on private matters that have no significant benefit to the public. On the other hand, because the household employs people other than family members to carry out domestic chores, it is appropriate to consider extending workplace protection to household workers; however encroaching it might appear.

As a highly feminised job (ILO, 2013) in the informal sector (ILO, 2010), the household predisposes workers to a sub-standard otherwise precarious working condition (Sargeant, 2014), and a high degree of vulnerability to hazards.¹² In addition to employment-related problems and maltreatment by employers, immigration constraint complicates the experience of ODWs (ILO, 2010; Piper, 2005; Triandafyllidou, 2013). In the UK, politics often influence the public perception of migrants (Jayaweera and Anderson, 2008). Further, the UK elite-led immigration policies (Consterdine, 2013; Mulvey, 2010) often changes according to the political agenda of the ruling party (Gower and Hawkins, 2013). While highly skilled migrants from countries outside the European Union (‘‘EU’’)¹³ are considered essential and economic viable (Home Office, 2012), low-skilled migrants from countries outside the EU are often seen as unwelcome and an economic liability (Devitt, 2012; Lowell, 2005).

12 The lack of official or any record on injuries and health and safety breaches in the households could be linked to the Government failure to extend health and safety laws to cover household workers. This exclusion is discussed further elsewhere in this thesis.

13 In line with the UK obligation as a member of the EU, workers from the EU whether skilled or unskilled are exempted from such policy.

5

Whilst the policies that prefer one group of migrants over the other could be argued as essential in a democratic society, it does not relieve the Government of its duty to protect the vulnerable such as the ODWs who are amongst the low-skilled migrants (Clark and Kumarappan, 2011). The UK Government introduced a new ODWs visa regime on 6^th April 2012. Unlike the pre- 6^th April 2012 ODWs visa regime (‘‘old visa’’) that was renewable and gave the bearers the opportunity to change employers in the UK, the new visa is non-renewable, lasts a maximum of 6 months, and prevents workers from changing employers.

Consequently, those on the new visas are potentially tied to their employers without any real opportunity to escape exploitive or abusive employers (Kalayaan, 2014). Given the prevalence of women in the sector, one may argue the need to balance Government economic policies with the duty to protect the vulnerable such as migrant women (Hiller & Saxtein, 2009) is highly desirable.

This thesis on the legal perspective of domestic workers’ problems is informed by the researcher’s work experience at various law centres in and around Greater London. The researcher’s attention was caught by (a) the link between employment and immigration law in cases involving the vast majority of domestic workers that he came across (b) the complex legal problems the workers presented with (c) their poor socioeconomic background, and (d) personal attributes such as very little or no competency in English language. Instead of sympathising with them, the researcher took an interest in exploring and understanding their problems, as well as in finding the root of the problems with a view to suggesting the better way forward. This research that seeks to explore the role of law on the problems facing domestic workers in the UK consists of a legal exploration and an empirical investigation conducted with informants, employers, and domestic workers in and around Greater London.

Given that the empirical investigation for this thesis adopted a qualitative research method, the researcher does not intend to generalise the research findings.

6

However, considering Falk and Guenther (2007) argument that one of the aims of conducting research is to build the evidence base to inform strategic or policy directions, the researcher intends to use the empirical research findings to understand and explain how UK laws (immigration, employment, and health and safety) impact on domestic workers irrespective of where they are employed in the UK. ¹⁴