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Prison is not a good place to be. It was recently reported that prisons are overflowing in the UK. An increasing number of people are locked up, with limited resources spent on supporting them during incarceration and after that. This is despite the fact that it is often people with a background of socio-economic disadvantage who are caught in the web of criminal justice, and that if not supported post-release, they may re-offend and end up in prison again. There is also widespread prejudice against prisoners, as we know fully well in the UK with the right to vote for prisoners saga (analysed here). The need for reform is pressing (with scholars and activists also pushing for prison abolition).
Many people work while in prison. Even though work is a central aspect of prison life, its social purpose and legal regulation have not been scrutinised sufficiently in labour law scholarship in the UK and other countries (but see here on the US and Canada). We just take it for granted. People spend long periods of time behind bars, cut off from family and social circles, with very limited contact with the outside world. Incarceration is their punishment but during it, they are supposed to be rehabilitated. Work is one of the most significant activities that many undertake, when not in their cells. It is an opportunity to feel useful, to come into contact with others, learn new skills that can be employed post-release, explore new activities or even pursue a passion, earn some money that can be spent on things that can be purchased in prison, and support dependents outside prison.
Through work in prison, people could also make savings to start rebuilding their lives post-release. Offenders are given just £76 upon discharge, with many of them having no place to live. Finding a job after prison is a good safeguard against recidivism, as the evidence shows, but it is hard for ex-prisoners to get a job. Destitution pushes former prisoners into crime. If resocialisation is an aim of the criminal justice system, it is certainly not something that is properly supported post-release.
We are creating the conditions for people to fail. If they do not fail, it is often despite the system, and not thanks to it. Too much is wrong with all this.
2. Legal rules on pay for prison labour
The regulation of prison labour in many legal orders is outdated, and creates what I describe in this book as an example of state-mediated structures of labour exploitation. Work in prison often does not reflect or promote social purposes of learning skills, feeling and being useful, or earning income and making savings.
What is also troubling, though, is that even when meaningful work is on offer, work that incarcerated people may like doing and that may give them some skills, it ends up being exploitative: prisoners do not have labour rights that other workers have. This is either through explicit exclusions in legislation or as a consequence of a legal determination that working prisoners have no contract of employment.
I will focus on wages here, though there are many other problems with the exclusion of working prisoners from labour rights. Working prisoners are seriously underpaid for the work that they do, they do not earn enough to make social security contributions, and may also be reluctant to claim labour rights through organising (even if they have a right to unionise in prison) because they may be perceived as trouble-makers. Exploitative work becomes further punishment, rather than an avenue of rehabilitation.
The legal basis for this exclusion of working prisoners from employment rights in the UK was examined in a recent case of the Employment Tribunal. A convicted prisoner, Mr Pimm, issued a claim, arguing that as a working prisoner, he was entitled to a number of employment rights that other ‘workers’ have, such as payment for the work he did. By way of background, Mr Pimm was convicted to a term of imprisonment in 2017, expecting to be released in 2025. In 2017 and 2018, when in prison in HMP Peterborough, a prison operated by Sodexo on behalf of the Ministry of Justice, he worked as a ‘Learning and Skills Coach’, supporting less educated prisoners. For this job, he was given a ‘compact’ and ‘job description’, which provided that he would be doing three sessions a day on weekdays, and two sessions per day at the weekend. Each session was paid a small sum of £1.70, falling far below the minimum wage. Mr Pimm lost in the Employment Tribunal. The Judge explained both that working prisoners are not ‘workers’ in the legal sense (referring to authorities, such as Cox v Ministry of Justice of the UKSC, which I discussed previously here), and that there is a legal framework that applies specifically to prison labour, which differentiates it from other work.
3. Types of work
There are several types of work in prison, and work opportunities also vary from one prison to another, but the legal framework applicable to all pay for work within prisons is as follows. Section 47 of the Prison Act 1952 provides that the Secretary of State may ‘make rules for the regulation and management of prisons… and for the… employment … of persons required to be detained’. The National Minimum Wage Act 1998 explicitly excludes working prisoners 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’. The Prison Rules 1999 state that ‘[a] convicted prisoner shall be required to do useful work for not more than 10 hours a day’ (31.1), and that ‘prisoners may be paid for their work at rates approved by the Secretary of State’ (31.6). For this work within prisons, pay is regulated through Prison Service Order 4460. The Order explains that setting and administering the pay of prisoners is a responsibility of the Governors of prisons. This work includes things such as cleaning or cooking in prison facilities but also work in prison workshops that are located outside prison cells but within prison walls. It is prisoners who are more trusted who do the cleaning and cooking. All work performed in prison has to be paid at least at the minimum weekly rate, which is £4 a week according to PSO 4460, Annex B.
In a Report that was published by the Howard League for Penal Reform in 2011, it was documented that the average pay for prison service work is £9.60 per week, which was described as derisory, while it has also been reported that some prisoners work up to 60 hours per week. A freedom of information request of Inside Times revealed recently that prisoners earn 50p per hour for work in prison workshops (when the minimum wage is £9.50 per hour). Work in prison workshops can be either for the state or for private employers that send work to prisons. For example, DHL employs a lot of people in prisons. Some employers offer positive examples, employing ex-offenders too, such as Timpson. Others less so.
Prisoners may also be working outside prison, for instance when they are in open prisons or on release on temporary licence (also known as ROTL). Work outside prison is not directed by prison rules, and is therefore not excluded from the national minimum wage. However, prisoners do not receive the minimum wage for the work that they do outside prison either. This is because of the Prisoners’ Earnings Act 1996, which applies when a prisoner is paid for ‘enhanced wages work’ and the person’s weekly earnings exceed a prescribed amount. Enhanced wages work is work that is not directed in accordance with prison rules. In this case, the prison authorities may make deductions from their pay – this is discretionary. PSI 76/2011 involves work only done outside prison for outside employers (1.4). This means that it applies to open prisons or to work done regularly outside prison by those who are in prison (1.11). On this pay, authorities can impose a levy (of up to 40%) on any income above £20 net pay per week. Net pay means in this instance pay after deductions for tax, national insurance, payments that are required to be made after court order, or following a maintenance assessment under the Child Support Act 1991. Revenue from this levy is used to support, among other things, voluntary organisations on victim support and crime prevention.
Many think that excluding working prisoners from the minimum wage is acceptable. They view this as part of prisoners’ punishment. This is wrong. Offenders are not sentenced to prison labour, and unpaid work is not a necessary implication of being in prison. The European Prison Rules, an influential instrument of the Council of Europe, state that ‘[p]rison work shall be approached as a positive element of the prison regime and shall never be used as a punishment’ (rule 26.1), while it is also provided that work has to be as close to normal as possible (26.7) and that there should be ‘equitable remuneration’ for it (26.10). Outside Europe, there are countries that still permit work as a penal sentence (for example Japan), and human rights supervisory bodies find that this is contrary to the prohibition of forced labour (see the Concluding Observations on the third periodic report of Japan, adopted by the CESCR at its fiftieth session, 29 April-17 May 2013).
The European Court of Human Rights (and the now defunct Commission) examined some cases on labour rights of working prisoners, but have not found a violation of the Convention this far. Many cases on minimal pay for work in prison and its compatibility with the prohibition of forced labour under Article 4 of the European Convention on Human Rights were decided a few decades back (see, for instance, De Wilde, Ooms and Versyp v Belgium). In more recent years, we can find some dissenting opinions that support the point that ‘[e]ven a prisoner cannot be forced to do work that is abnormal’ (see the full dissents in Stummer v Austria that involved social security rights of working prisoners).
The ILO has said that, with respect to private use of prison labour, 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. The European Committee of Social Rights also considered prison labour in the context of Article 1, paragraph 2 of the European Social Charter, which protects the right to work in an occupation freely entered upon, and reached similar findings to the ILO, namely that working conditions in prison have to be regulated strictly, and that when employed by private employers, prisoners have to be employed with their consent and in conditions as similar as possible to working conditions outside prison (Conclusions XVI-1, Germany). The Committee has also said that the prohibition of discrimination applies to their pay, working hours and other working conditions, as well as social security rights (Conclusions 2012, General Introduction, Statement of Interpretation of Article 1 para 2). All these materials promote the normalisation of prison labour, which means that the working conditions of those incarcerated should resemble the conditions of those outside prison insofar as possible.
There may be other concerns about prisoners receiving higher wages. Some may think that because it is costly to keep people in prison, it is only fair for prisoners to contribute to the cost of it through their labour. These kind of arguments should be approached with real caution. A lot of people are in prison who should not be there, as we tend to overcriminalise and imprison people for conduct that should either not incur criminal liability or, even when it is rightly viewed as criminal, it should not be punished through imprisonment. There are also prisoners on remand who may be acquitted.
The deductions for work outside prison may also raise concerns for they may discourage prisoners from working outside prison, they may be experienced as punitive, and may also reduce excessively the amount of money that prisoners can save in order to restart their life after prison. The compatibility of these deductions with the European Convention of Human Rights was examined in a 2012 High Court ruling. Applying a wide margin of appreciation, the Court found that these did not violate the right to property under Article 1 of Protocol 1 of the Convention, inter alia, as they pursue a legitimate aim and are proportionate to the aim pursued. There is little question that contributing to a victim’s fund is a legitimate purpose. However, the amount of deductions and their effect on the wages that prisoners receive needs to be considered more closely, keeping in mind the social and personal value of work for prisoners, as discussed briefly earlier in this blog post.
Even those who are convicted for serious crimes have to be given a chance to rebuild their lives. Getting them to work with humiliatingly low remuneration can only damage their chances to make a fresh start. Meaningful work in prison can teach skills that can be used after prison too, but much more work needs to be done to address prejudice experienced by ex-prisoners. To the extent that prisons are needed, they are costly and we should all shoulder the cost.
5. How should it be?
The leader of the UK prison officers’ union, Mark Fairhurst, said that prisoners should be paid the minimum wage for their workshop jobs. The Howard League for Penal Reform has made concrete recommendations on how to have ‘real work’ in prisons: they said that it is desirable for prisoners to work, proposed that it is acceptable for private employers to be involved, and emphasised that prisoners should receive real wages for their work, make national insurance contributions, contributions to a victims’ fund, and pay tax. The Guide to the European Prison Rules says that work must be useful, provide fair pay and include vocational training, that people should have some choice over the type of work, and that their working conditions (such as maximum hours and health and safety) should not be below those outside of prison. It also says that pre-trial, people can be permitted but not required to work, while after sentence, they may be required to work subject to fitness. These and other related recommendations need to be taken up and explored seriously.
At a time of labour shortages and while there is a push to employ more working prisoners to cover these, keeping them trapped in structures of exploitation while in prison and setting them up to fail post-release is unjust.
I benefited greatly from discussions with Andrea Coomber and Ryan Walker of the Howard League for Penal Reform, Katy Emck of Fine Cell Work, and Shinya Ito at UCL.
Virginia Mantouvalou is Professor of Human Rights and Labour Law, UCL Faculty of Laws. Her monograph Structural Injustice and Workers’ Rights, supported through a British Academy Mic-Career Fellowship, will be published by OUP in early 2023.
(Suggested citation: V Mantouvalou, ‘Pay for Work in Prison,’ UK Labour Law Blog, 12 December 2022, available at https://uklabourlawblog.com/)