Seasonal labour provider Ethero has condemned the justice system after the High Court allowed its appeal against a ban imposed by the Home Office, only to then rescind it within days, citing an “error”.
MD Gareth Hughes said he had been forced to “completely restructure and refinance my business just to stay afloat”, following a protracted legal battle with the Home Office after it had suspended Ethero as a seaonal worker scheme operator in April 2024.
Hughes’ pension was now also “ruined” as a result of the legal wrangle, while 16 of Ethero’s staff had lost their jobs over a situation the company insisted had been mishandled by the Home Office.
Legal proceedings as Ethero sought to contest the Home Office ban had also been riddled with “multiple errors made by various people and at various stages of the legal process”, he added.
The company was suspended as a SWS operator following a period of poor weather in spring 2024, which left workers unable to work on Varfell Farm in Cornwall. Ethero said it had alerted the government to the issues and sought advice, but was suspended four weeks later, without receiving any guidance.
It sued the Home Office over this decision but lost in the High Court last year. Ethero then submitted an application for permission to appeal its case last autumn.
At the time Hughes told The Grocer he was seeking “fairness”.
“The Home Office suggested that Ethero was a risk to the immigration system,” Hughes said last year. “This is completely untrue and evidenced by the fact that the actions we took in a very difficult situation resulted in no asylum seekers, no undue increase in workers absconding from work and no worker welfare issues.”
Latest legal process
On 21 January, the business was told by the courts that permission to appeal had been granted and that the case was waiting for a judge to be appointed.
However, Ethero was last week told this had been a “mistake” and that the case was yet to be read. Within days a judge then dismissed its permission to appeal request.
“We apologise for this administrative error,” said a HM Courts & Tribunals spokesperson. “Additional staff training has been implemented to prevent errors going forward.”
Hughes said he found it “entirely suspicious” that a case “that was not even allocated and which has deep legal technicalities to consider could, all of a sudden, be allocated, read in depth and understood and a ruling report could be fully written and processed through the courts admin procedures in just three to four days”.
Lord Justice Dove found that the arguments laid out by Ethero in its application for permission to appeal did “not raise grounds which justify the grant of permission to appeal, and nor is there any other reason why permission to appeal should be granted”.
“I completely disagree and still don’t believe we have been treated fairly by the SWS team or the legal system,” said Hughes, in an email seen by The Grocer.
He added that the case from the Home Office had been “misrepresentative” and “intentionally misleading”.
Ethero’s legal challenge hinged on four main points, including claims that the SWS rules – particularly the 32-hour minimum work requirement – were “unclear and caused widespread confusion”.
In legal documents seen by The Grocer, the Association of Labour Providers (ALP) told the courts the suspension was not “reasonable or proportionate”, adding that it did not see how Ethero “pose[d] a risk to immigration control”.
The 32-hour rule
Hughes said in September that the rule states that every single week a worker is in the UK they must get at least 32 hours pay, “with no exceptions”, adding that “even a single week where this doesn’t happen is a breach of the rules”.
He argued that no operator understood the rule to mean that they would be liable to pay workers in the event that a farm placement ended earlier than planned, leaving a ‘gap’ in employment.
In the email to Gangmasters and Labour Abuse Authority Licensing and others, Hughes this week argued he still believes the legal proceedings were carried out unfairly as two other operators had also been affected by the weather and “neither had been paying 32 hours wages to the effected workers that had their contracts terminated early by Varfell”.
In the legal statement from Andrew Edgar, director of UK Visas & Immigration, he said that “no other emails regarding the 32-hour rule and inability to implement were received by the seasonal work scheme”.
Hughes has argued that the business was punished for being “honest” while other businesses did not alert the government.
Read more: Legal battle over Seasonal Worker scheme exposes rule flaws
Edgar added that farms had been inspected within eight miles of Varfell and none reported weather issues, however, Hughes said this happened before the issues with the weather started.
“Ethero did not fail a single UKVI contractual measure in terms of KPIs and the situation at Varfell resulted in zero worker welfare complaints of problems,” added Hughes. “We had no absconders and caused no problem to UK immigration.
“What is more, is our reputation with the growers and the National Recruitment Centres of the countries we worked with was and still is excellent. They all stay in contact and tell us they wish they were still able to work with us. This gives me some small amount of solace.”
No comments yet