Human Rights for Working Prisoners – by Virginia Mantouvalou

Image by Free-Photos from Pixabay

1. Introduction

A few days ago it was highlighted in the press that the Association of Independent Meat Suppliers was in discussions with the Ministry of Justice. The aim of these was to explore how prisoners could be used to cover labour shortages, one of the many reported effects of Brexit. The scheme under which this could be done is the ‘Release under Temporary License’, which permits certain categories of prisoners who are on day release to work. Another group of prisoners who could work in this context are those with long sentences that are coming towards the end of these and who are idle for years while in prison (see further here).

The justification of prison labour is controversial. Work in prison is not part of prisoners’ punishment: the European Prison Rules explicitly say that ‘[p]rison work shall be approached as a positive element of the prison regime and shall never be used as a punishment’ (Art. 26(1)). Instead, it is typically justified based on other reasons. A key reason is that prison work can promote prisoners’ reintegration in society by teaching them new skills and improving their employability. By improving employability, it can reduce recidivism. In addition to promoting prisoners’ reintegration, it can provide them with income that they can use to support their dependents while in prison, cover their own needs (such as buying credit for their phones) and make their life feel less boring and monotonous. The benefits of fair work in prison have been highlighted in research.

Even though work in prison is not part of punishment and should therefore be a right rather than duty, it is often compulsory. A Council of Europe survey that looked at forty (out of its forty-seven) member states found that in twenty-five of those prisoners are required to work at least in certain circumstances (Stummer v Austria, 2011, para 60(a)). Those who refuse to work may be sanctioned with reduced visits from friends and family, reduced television or gym time, less or no income and even solitary confinement. In reality, very often work in prison is meaningless, repetitive and is perceived by prisoners as part of their punishment rather than a route to reintegration.

In this piece I do not talk about violations of the human rights of prisoners more generally that the European Court of Human Rights has often found, or about the institution of prison as a whole, which has been scrutinised by Angela Davis and others. I will only focus on prison labour.

2. State-mediated structures of exploitation

While real work in prison can be beneficial, as the Howard League for Penal Reform has regularly argued, working prisoners are forced and trapped in structures of exploitation that are state-mediated. By structures, I mean patterns that we can identify that are becoming all the more widespread, and where people are forced and trapped. I call them state-mediated because the state has a major role to play in creating and perpetuating workers’ vulnerability by excluding them from protective laws. Prisoners are a vulnerable group of people, as the European Court of Human Rights has repeatedly ruled, and the authorities have a duty to protect them (Enache v Romania, para 49). That the state creates further vulnerability by excluding them from important labour and social security rights should be scrutinised carefully.

I will give a few examples of prisoners’ exclusions from protective rules. Working prisoners are excluded from many labour and social security rights across the world. In comparative studies of European countries, it has been highlighted that working prisoners in several countries are excluded from the right to form trade unions and the right to strike, from being covered by collective agreements or a social security system, and from minimum wage laws. A Council of Europe survey showed that in twelve member states, prisoners are not included in a pension system (Stummer v Austria, para 60(c)), while in other countries the affiliation to a social security system depends on the type of work performed, and particularly whether it is remunerated and whether it is for outside employers. In France, the Criminal Procedure Code (Article 717-3) states that the employment relations of incarcerated people are not covered by an employment contract. As a result, prisoners do not have a right to form and join trade unions or a right to sick pay. They also do not have a right to have a say on working conditions, or a right to compensation for industrial accidents. Moreover, prisoners are not entitled to the minimum wage, from which they are explicitly excluded by law or a right to access labour courts. Similar exclusions are found in Germany, where prison work is compulsory but those working in prison have better coverage in unemployment protection that in France (see further here). Exclusions from labour rights of working prisoners exist in many other legal orders.

The UK National Minimum Wage Act 1998 explicitly excludes working prisoners from its scope by providing that a ‘prisoner does not qualify for the minimum wage in respect of any work which he does in pursuance of prison rules’. Prison labour often consists of cleaning, cooking and other work towards the maintenance of the facilities. Other times prison labour involves boring and monotonous work for private employers. The work often does not support the development of new skills. A recent empirical study reported that a prisoner said:

This job down here, I detest it, I hate it. They … [the instructors] … they will tell you, they will attest to this, I don’t like [coming here] at all … I’m not lazy but [these jobs] don’t engage my brain, they don’t make me feel like I’ve fulfilled something in the day … What am I doing? Clipping wires? Smashing computers …?

(Jermaine, aged 18, Workshop 1)

In this same study, it was suggested that private firms that employ prisoners do this to reduce labour costs. If people were employed to do this work outside prison, it would have been much more costly than £15-£25 per week, which was what these firms pay workers in prison. (See also Pandeli’s blog post here).

In a report of the Howard League for Penal Reform, it was documented that the average pay for prison service work is £9.60 per week, while it has also been reported that some prisoners work up to 60 hours per week. Certain private companies pay about £2 per hour for prisoners’ labour. The Prisoners’ Service Order 4460 involves prisoners’ pay. It says that, even though prisoners are excluded from the national minimum wage for work that they do in accordance with prison rules, those who work for outside employers doing a job that is not in the voluntary or charitable sector have to be paid at least the national minimum wage (para 2.4.7). This means that if prisoners work outside prison, they are supposed to receive the minimum wage. The distinction between work in prison and work outside prison is not justified. Private employers get prisoners to work for them while in prison, and avoid in this way their obligations to pay the minimum wage (see further here).

The vulnerability of working prisoners is further compounded by the fact that it is most probable that they would not be viewed as working under a contract of employment. As a result, they may be excluded from other legal protections that depend on employment status. Looking at the question of whether the Factories Act 1937, which applied to those working in factories, also applies to prisons, it was ruled in the 1957 case of Pullen that this is not the case (Pullen v Prison Commissioners [1957] 1 W.L.R. 1186; see also Keatings v Secretary of State for Scotland 1961 S.L.T. (Sh. Ct.) 63 (1961)):

…for the Factory Act to apply there must be found to exist […] the relationship of master and servant and employment for wages. There is no employment for wages in the case of prisoners. Prisons are put under the control of the Secretary of State, who exercises his control through the Prison Commissioners, and through visiting magistrates who visit the prisons to see that the provisions of the Prison Act 1952, are being carried out.

Prison work is ‘penal in the sense that the prisoners are obliged to work as a consequence of their sentence’. The Health and Safety at Work Act 1974 provides that the employer has duties also towards those who are not employees (section 3), which suggests that the act covers those who are not employed under a contract. However, section 52 requires a contract. Moreover, many of the detailed regulations, such as the Manual Handling Regulations, are restricted to employees with contracts. This suggests that the question whether there is a contract can be crucial.

Many other labour rights are dependent on employment status. The employment status of working prisoners was discussed in the UK Supreme Court decision Cox v Ministry of Justice (2016), where a working prisoner in the prison kitchen accidentally injured the catering manager. The question was whether the prison service was vicariously liable for the act of the working prisoner. In the Court’s judgment it was pointed that the relationship of the working prisoner and the prison authorities differs from an employment relationship: prisoners do not work on the basis of contract, but because they have been sentenced to imprisonment, and are only paid nominally. However, these features ‘rendered the relationship if anything closer than one of employment: it was founded not on mutuality but on compulsion’ (para 14; see also para 35). The Supreme Court concluded that the prison service was vicariously liable because those working in prison kitchens are integrated into the operation of the prison as their activities are essential for the running of the prison, they work in circumstances where they may commit negligent acts, and they work under the direction of staff of prisons (para 32).

The principle established in Cox, being that the relationship between the prison authorities and working prisoners is even closer than an employment relation because they are compelled to work, should make us question whether it is legitimate to exclude them from basic labour protections. The element of compulsion that the Supreme Court recognised makes working prisoners more vulnerable to exploitation than other workers. The full range of labour rights has to apply to them, and close inspection of working conditions is essential. Those in prison are deprived of their physical freedom, but there is no justification for them to be deprived of labour rights when they work.

At the same time, there should be scope for recognising an employment relation for prisoners who are employed voluntarily and not under the threat of sanctions by the prison authorities. In the case of those employed voluntarily, the standard test on employment status should apply, recently analysed by the Supreme Court in Uber v Aslam (discussed here by Atkinson and Dhorajiwala).

Other examples of working prisoners’ exclusions from protective laws come from the United States. There are over two million prisoners, the highest prison population globally, a phenomenon that Zatz and others describe as a ‘carceral state’ (see, for instance, his contribution in this volume), while the rate of incarceration for black Americans is much higher than white Americans and Hispanics. Working prisoners are not explicitly excluded from basic labour rights protections, which are found in the Fair Labour Standards Act. However, as in several other countries, courts do not usually view them as employees, so this has the same exclusionary effect. In Vanskike v Peters, a court had to examine whether working prisoners who were janitors, kitchen workers and garment workers, were entitled to the minimum wage. It decided that working prisoners were not entitled to the minimum wage because they were not employed by the government: ‘prisoners are essentially taken out of the national economy upon incarceration’. Their work, in turn, is part of their sentence of imprisonment. As a result, it has been documented that prisoners are paid minimal or no wages at all for prison maintenance work, which is the vast majority of prison work in the US.

Another instance of an exclusion of working prisoners from labour rights is found in Jones v North Carolina Prisoners’ Labor Union, which limited rights to free speech and assembly of prisoners and circumscribed in this way their right to organise unions. A prisoners’ labour union brought a case to court because the prison authorities banned prisoners from soliciting others to become union members, holding union meetings and sending bulk mail of the union. The Supreme Court ruled that this does not violate free speech and associational rights under the First Amendment and that it was a reasonable measure adopted by prison authorities that should be left to their discretion, as adequate alternatives existed for prisoners, while a prison labour union was fraught with threats to order and security. The majority found that curtailment of constitutional rights, such as the right to association, is justified in prison. The Court’s decision created in this way a legal structure that makes incarcerated workers vulnerable to exploitation by excluding them from rights to unionise that other workers enjoy.

In Jones Mr Justice Marshall (joined by Mr Justice Brennan) dissented:

 There was a time, not so very long ago, when prisoners were regarded as ‘slave[s] of the State,’ having ‘not only forfeited [their] liberty, but all [their] personal rights. . . .’ Ruffin v. Commonwealth, 62 Va. 790, 796 (1871). In recent years, however, the courts increasingly have rejected this view, and with it the corollary which holds that courts should keep their ‘hands off’ penal institutions. […] Today, however, the Court, in apparent fear of a prison reform organization that has the temerity to call itself a ‘union,’ takes a giant step backwards toward that discredited conception of prisoners’ rights and the role of the courts. I decline to join in what I hope will prove to be a temporary retreat.

Sadly, the ruling in Jones has not been overturned, but there have been some developments, which are discussed here. (On the activities and challenges faced by the Incarcerated Workers’ Organising Committee in the US and the UK see here).

3. Are the exclusions justified?

Some may think that these exclusions of working prisoners from protective laws are justified because working prisoners should contribute to the cost of the running of the facilities. Yet upon closer inspection, we see that the work that prisoners do often consists in much more than maintenance of the facilities, that it can involve long working hours, that the quality of the work does not support their reintegration and that private firms make profit from this situation (see the blog post by Pandeli).  The fact that the work of prisoners is linked to structures of exploitation must make us question this supposed justification. To the contrary, what we see is that the rules increase and perpetuate existing structural unfairness: people who may already be disadvantaged because of background conditions of poverty are excluded from the protection of labour law. They are in this way made vulnerable to exploitation by profit-making organisations that are involved in the running of the prisons or the running of prison workshops where prisoners are employed.

There is another crucial issue that must be highlighted. These structures of exploitation do not only affect workers employed while in prison. They are connected to precarious work after they leave the criminal justice system. It has been observed by Erin Hatton that those who have worked in prison ‘come to expect – and sometimes embrace – low-wage precarious work outside prison’. In addition, they also face serious obstacles when attempting to find better work because of their criminal record (see this article by Dallas Augustine). What we see is that the structure of exploitation in prison extends to structures of exploitation after prison.

4. Human rights for working prisoners

The exclusions of working prisoners from labour rights may violate human rights law. One problem in that respect is that even in human rights law, in documents that were drafted several decades ago, we find exclusions of prison labour. We can see this by looking at constitutional and other human rights provisions that treat working prisoners differently to other workers.

Article 4 of the European Convention on Human Rights (“ECHR”), which prohibits slavery, servitude, forced and compulsory labour, states: ‘For the purpose of this Article the term “forced or compulsory labour” shall not include […] any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during release from such detention’. A similar exception is found in the Thirteenth Amendment of the US Constitution that states that ‘[n]either slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction’.

The International Labour Organisation (“ILO”) draws a distinction between private and public prisons in the Forced Labour Convention No 29 of 1930, and places specific requirements to the regulation of private use of prisoners’ labour, probably because of the danger of exploitation of prison workers by private entities. It excludes prison work from the scope of the Convention when it is performed in state prisons, but includes privately-run prisons.

These exclusions of working prisoners from labour rights may have seemed acceptable at the time that these legal documents were adopted, but they are not acceptable anymore. The ILO examined in 2007 whether prison labour for private employers complies with Convention No 29. In order for prison work for private employers to comply with the Forced Labour Convention, what is needed is the formal, written consent of the prisoner and working conditions similar to a free labour relationship (in relation to wage levels, social security and occupational safety and health). These would indicate that labour is voluntary (see paras 59-60 and 114 ff). The European Committee of Social Rights, the monitoring body of the European Social Charter, has also examined prison labour in the context of Article 1, paragraph 2 of the Charter, which protects the right to work in an occupation freely entered upon. It reached similar findings to the ILO, saying that prisoners employed by private employers have to be employed with their consent and in conditions as similar as possible to working conditions outside prison.

The Grand Chamber of the European Court of Human Rights examined prison labour in the Stummer case that I mentioned earlier, which involved affiliation of working prisoners with an old age pension system. The finding of the majority was disappointing, as it ruled that lack of affiliation with an old-age pension scheme does not render the Applicant’s work forced labour contrary to Article 4 of the Convention or violate his right to property (Article 1 of Protocol 1) and the prohibition of discrimination (Article 14). The Court recognised that the 2006 European Prison Rules require that work is as normal as possible for those in prison. Still, the majority was reluctant to apply this principle to old age pension (rule 26.17).

However, there were powerful dissenting opinions in Stummer on the human rights of working prisoners. The dissenting judges said that the exclusion of working prisoners from old age pension violates Article 1 of Protocol 1 (right to property), as well as Article 4 (prohibition of forced and compulsory labour). In doing so they placed special attention to the fact that the ECHR is a living instrument that must be interpreted in light of present-day conditions, and not in light of the drafters’ intentions. At the same time the rights of the ECHR must be practical and effective, as Judge Tulkens particularly highlighted in her dissent:

[C]an it really still be maintained in 2011, in the light of current standards in the field of social security, that prison work without affiliation to the old-age pension system constitutes work that a person in detention may normally be required to do? I do not think so. This, in my view, is the fundamental point. Nowadays, work without adequate social cover can no longer be regarded as normal work. It follows that the exception provided for in Article 4 § 3 (a) of the Convention is not applicable in the present case. Even a prisoner cannot be forced to do work that is abnormal.

The dissenting opinions in Stummer should form the basis for the development of the law in the future.

5. Captive labour and a continuum of exploitation

I want to point to a continuum of exploitation here. A few months ago I wrote for this blog on unpaid work requirements that are imposed on certain offenders and managed by profit-making organisations in the UK, and some time before that on work in immigration detention. In all these instances, I argued that the exclusion of offenders and immigration detainees from labour rights such as the right to a minimum wage is not justified. If we take these examples together with those working in prison and excluded from labour rights, we see that the state creates and sustains a continuum of structures of exploitation. It systematically creates or increases the vulnerability of captive labour, through concrete legal rules that exclude these workers from legal protections. This is not acceptable.

Frances Crook, chief executive of the Howard League for Penal Reform, was right in her powerful piece in the Guardian. She explained that prisoners can work for private companies and that this can be valuable for them and for society at large. But for prison work to be fair, radical change is needed: prisoners have to earn real wages, have workers’ rights, and pay tax and social insurance contributions. It is only through radical change of the legal framework on working prisoners’ rights that their recruitment by private companies can be acceptable. Without that, the authorities will be playing a major role in state-mediated structures of exploitation for private profit and violate in this way the human rights of working prisoners.

Suggested citation: V Mantouvalou, ‘Human Rights for Working Prisoners’ UK Labour Law Blog, 8 September 2021, available at https://uklabourlawblog.com