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The Modern Slavery Act 2015: time is ticking for your slavery and human trafficking statement
The Modern Slavery Act 2015[i] (the “Act”) came into effect on 29 October 2015 and requires commercial organisations that supply goods or services and have a global turnover above £36 million, to publish an annual slavery and human trafficking statement for each financial year (ending on or after 31 March 2016). The government encourages publication of such a statement within six months of the end of the financial year.
The requirement is broad and applies to any company that carries on a business or part of a business in the UK, including foreign companies whose subsidiaries carry on a business in the UK and UK businesses carrying on a business abroad. The requirement applies irrespective of the industry in which the business operates. The statement must disclose “the steps the organisation has taken during the financial year to ensure that slavery and human trafficking is not taking place in any of its supply chains, and in any part of its own business”. The Home Office has issued guidance on the slavery and human trafficking statement requirement.[ii]
The aim is to ensure that businesses are transparent about what they are doing to tackle modern slavery and human trafficking and to compel businesses to address these human rights violations not only directly in relation to their own activities but also in relation to the activities of any entity that is part of their supply chain. Businesses need not guarantee that their supply chains are free from slavery or trafficking but must set out the steps taken to address such issues. If an organisation has taken no steps they must state this. Organisations should build on what they are doing in each of their annual statements.
The statement must be approved by the company’s board and signed by a company director. The statement must then be published on the organisation’s website and must include a link in a prominent place on its homepage so that it is accessible by anyone who wants to see it. For organisations with no website, a copy of the statement must be provided upon request. If a business fails to produce a statement the Secretary of State may seek an injunction requiring the organisation to comply, and failure to comply with the injunction will lead to an order for contempt of court, which is punishable by an unlimited fine.
Content of the statement
It is up to the individual organisations as to how they present the information and how much detail they provide. The information included will depend on the sector, the complexity of the business’s structure and supply chains, and where its suppliers are located. If an organisation already has relevant policies in place, such as a corporate social responsibility (CSR) policy, it may, rather than repeating the information, provide links to such policies or other relevant documents in the statement.
The Act does not specify what the statement must include, but does provide a non-exhaustive list of what may be included, namely information about:
- the organisation’s structure, its business and its supply chains;
- its policies in relation to slavery and human trafficking;
- its due diligence processes;
- the areas where there is a risk of slavery and human trafficking, and the steps taken to manage that risk;
- its effectiveness in ensuring that slavery and human trafficking is not taking place; and
- the training available to staff.
The statement might, for instance, describe the business sector and whether there is a particular risk for slavery and human trafficking by explaining who the suppliers, sub-contractors, agents, distributors, franchisees are in each country of operation. The statement might also address whether the organisation has a policy on slavery and human trafficking and discuss other relevant policies it has, such as procurement policies, supplier codes of conduct, employment policies, labour conditions and recruitment processes. It might address what would be done if a supplier were found to have been involved in modern slavery, what would be done to protect victims, as well as how whistle-blowing is handled. It might also discuss who is responsible for managing the risk of slavery and ensuring that labour standards are met.
Practical points to consider in drafting the statement
The requirement to publish a slavery and human trafficking statement is new and there is, therefore, not yet much evidence as to how this requirement will in practice be implemented. It is likely however that the majority of businesses will provide a statement, rather than state that they have not taken any steps, as this may have a significant impact on reputation. It has also been suggested that some businesses might weigh the risks and provide a more complete assessment of some of their supply chains than others, and explain why they have done this. It will be better to be honest and upfront about the risks faced and acknowledge the need for improvements where they exist, rather than seek to publish a flawless statement the first year by ignoring something.
The requirement will begin to apply to businesses at different times depending on their financial years, however, it would be advisable for businesses to start preparing as soon as possible. Steps businesses can take to prepare for the initial statement include to:
- determine what information is needed to prepare the statement and where to obtain it;
- ensure there is a clear understanding of the make-up of the entire supply chain;
- outline responses by considering policies currently in place and action taken, such as how suppliers are managed, commitments in contracts already in place, audits, etc;
- assess whether the business knows how it would react to cases of modern slavery or human trafficking if faced with them now;
- consider what the statement might look like and assess how an external stakeholder might perceive it e.g. a customer or investor, whether it adequately describes the business’s activities, and whether there is a need to include a discussion about future steps intended to be taken to improve things long term; and
- appoint someone with the responsibility for drafting the statement.
Observations about statements that have already been published
Some businesses have already published slavery and human trafficking statements. These statements vary in length from a few paragraphs to up to several pages. Some seem to be using the statute’s list of suggested topics as a guide, following them as an outline whereas others have chosen to discuss the steps taken in a less structured way. Some have made use of the option to provide links to related policies or documents, whereas others have chosen to provide quotes from them in the statement itself. Some statements bear the signature of a director whereas others do not.
A piece of legislation with similar requirements to the Act, is the California Transparency in Supply Chains Act of 2010 (SB 657), and some businesses have chosen to issue a statement that refers to both pieces of legislation, thus satisfying the requirements of both.
It seems the requirement that there be a link to the statement on the homepage has not always been complied with. For instance, in one case the link is located under “policies”, in another it is located under “Human Resources and Employee Welfare”, whereas in a third the link is under “Corporate Social Responsibility” which in turn is under “Investor Relations” on the homepage. In some the statement could be found only via a search. The ones that do have the link on the homepage tend to have it at the bottom.
This shows that organisations have interpreted the Act differently and have taken different approaches as to how they go about publishing their statements. It remains to be seen how strictly the letter of the Act will be enforced and whether that will lead to changes in the approaches of the businesses who have already published statements.
Longer term changes
The ultimate objective of the statements is not to satisfy the legislative requirement of publishing one but to achieve transparency about the action businesses are taking to contribute towards, over time, eradicating slavery and human trafficking. There are a number of steps that can be taken in order to more effectively handle the risk of slavery of human trafficking including:
- developing slavery and human trafficking policies or include them in existing ones, such as CSR policies;
- assessing the level of risk of slavery and human trafficking in the business’s own activities and the supply chain, including contractors, sub-contractors, and suppliers;reviewing the terms of contracts with contractors, sub-contractors, and suppliers;
- reviewing current mechanisms and procedures to mitigate risks, including in relation to other risks, e.g. corruption, and if needed introduce new mechanisms to mitigate the risk of slavery and human trafficking specifically;
- identifying high risk areas in the supply chain and plan how to address the risks. It may be politically sensitive to single out certain geographic areas and as such, to avoid appearing judgmental of the country in question it might be advisable to refer to information from a third-party e.g. the Global Slavery Index;[iii]
- appointing senior personnel with responsibility for investigation and compliance;
- training employees to ensure they are aware of the new obligations and can identify slavery and trafficking; and
- instituting whistle-blowing mechanisms for reporting of concerns regarding slavery or human trafficking.
The guidance issued by the Home Office references the UN Guiding Principles on Business and Human Rights[iv] (the “Principles”), an international guide about how business should approach human rights questions. The Principles propose that businesses undertake “human rights due diligence”, namely an ongoing assessment of a business’s actual and potential human rights impacts, including via its business relationships, as well as acting on the findings, and communicating how such impacts are addressed.
The Principles also give guidance regarding appropriate policies that businesses should have in place, and how such policies should be prepared and implemented, noting that there is a need for coherence between respecting human rights and the policies that govern wider business activities and responsibilities. The Principles also address how a business can assess its own adverse human rights impact by drawing on expertise and consulting with potentially affected groups and other relevant stakeholders. Businesses should be especially vigilant in connection with individuals who may be particularly vulnerable and they should be mindful of the differences in the risks that are faced by men and women.
The Act does not give organisations a lot of time to prepare their first slavery and human trafficking statements. Since the information that businesses might want to include will vary significantly depending on the sector and the complexity of their supply chains producing the statement will likely be easier for some rather than others. The flexibility built into the requirement to publish a statement, including the fact that the requirement can be satisfied by merely stating that the business has not taken any steps to ensure slavery and trafficking are not taking place, suggests that the bar for complying, at least initially, is very low.
It remains to be seen how these statements develop, in particular how the flexibility given in terms of content and structure will impact the statements, and how this will in turn be perceived by the government. Similarly, it is as of yet unclear how vigorously failure to publish a statement will be pursued, and what the consequences will be for publishing a statement but not adhering to all of the associated obligations, such as not including a link on the homepage. Whether organisations subject to other similar legislative requirements, such as the California Transparency in Supply Chains Act of 2010, will prefer to publish separate statements for each or a single statement that satisfies the requirements in multiple jurisdictions, will also remain to be seen, including what the impact might be if more jurisdictions pass similar laws.
Although the immediate concern for businesses is the looming deadline for producing a slavery and human trafficking statement, rather than focus only on the statement, businesses are advised to adopt a longer term view of seeking to address the occurrence of trafficking and slavery in their supply chains. Ultimately, the goal is for businesses to be more aware of trafficking and slavery as problems affecting their business which will allow them to be able to identify where there might be risks and to make changes in response to such risks, so that, over time, their supply chains can become slavery and trafficking free.