A Seasonal Worker scheme operator suspended by the Home Office has slammed the government as it launches a fresh legal challenge.
Ethero, a former operator under the scheme, has applied to the Court of Appeal for permission to appeal its case against the Home Office, following its loss in the High Court over the suspension of its operator licence in April 2024.
The company was suspended following a period of poor weather in spring 2024, which left workers unable to work on Varfell Farm in Cornwall. Ethero said it alerted the government to the issues and sought advice, but was suspended four weeks later on 30 April without receiving any guidance.
Managing director Gareth Hughes told The Grocer it been “almost ruinous” for the business, with long-term staff losing jobs and growers left without workers.
“All we seek is fairness,” Hughes said. “The Home Office suggested that Ethero was a risk to the immigration system. 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.
Read more: Seasonal Worker operator fury after licence revoked
“In fact, it is actually the Home Office’s own processes that caused serious worker welfare issues and distress and increased risk to the UK immigration system.”
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”.
Legal challenge
Ethero’s legal challenge hinges on four main points, including claims that the SWS rules – particularly the 32-hour minimum work requirement – were “unclear and caused widespread confusion”.
Hughes said 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 argues 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.
A further complication is that scheme operators cannot act as employers under the current rules. However, farmers are unlikely to retain workers they no longer need, putting workers and operators in a difficult situation when needs change.
“Weather and crop failure isn’t the only reason a gap in 32 hours pay may happen,” said Hughes. “Workers refuse to work, are absent, or have their contract terminated due to poor performance – these are all scenarios where there is very little time to find an alternative placement without some sort of waiting period, especially in the winter season.
UK Visas & Immigration has made scheme operators responsible for worker payments where there is a gap in employment placements. Hughes described this as a “completely unworkable financial model” which carries significant risks of breaching other scheme obligations, particularly the rule that operators cannot act as employers of seasonal workers.
SWS is ‘full of holes’
Since Ethero’s suspension, other operators have amended the wording in their contracts with farmers. However, Hughes points out “there is still acceptance that the farm may dismiss a worker at any time, so contract terms can never wholly rely on the farm committing to payment throughout the duration”.
The company said the Home Office has left these key questions unanswered, and made no attempt to clarify how the rules should be applied in practice.
Read more: Why the UK’s Seasonal Worker scheme still isn’t working
These concerns were echoed in legal documents in which ALP chair David Camp stated the organisation did not believe the application of the 32-hour rule was clear.
“ALP has sought clarity on the application of this rule on numerous occasions since February 2023, but this has not been forthcoming from the Home Office or Defra,” he said.
Camp also provided seven examples of ALP emails to the government, five of which had gone unanswered.
Similar concerns were raised by the Migration Advisory Committee review of the SWS scheme in July last year, when it found there was “a lack of adequate communication and consultation with scheme operators” and suggested further consultation should take place. This has not happened.
“The Seasonal Worker scheme is a system that is full of holes, contradictions and ambiguity and it simply has to be reviewed,” said Hughes.
Unfair treatment
In its application for permission to appeal, Ethero also said there was procedural unfairness in the process leading to its suspension. It claimed the judge applied the wrong legal test when rejecting its initial bid for judicial review.
“In the High Court the Home Office legal team cited a completely irrelevant case as precedent,” said Hughes.
“Because that case had been heard in the Court of Appeal it was considered to outrank the High Court, so our initial application did not succeed. We hope that, when a Court of Appeal judge reviews our application, they can clearly see that the case used against us has no relevance at all to Ethero’s situation and that we are given permission to proceed with our judicial review.”
The operator also argued that it was treated unfairly compared with other operators, claiming that two other operators faced similar issues with workers experiencing unpaid gaps in employment, but these were not penalised or investigated.
“The inconsistency of process and investigation and the application of ambiguous and poorly written scheme rules from the Home Office clearly resulted in Ethero being treated differently and unfairly when compared to other operators,” Hughes said.
He believes the company has been failed by the legal process so far, adding that “evidence is easy to see if the justice system is prepared to properly look at it”.
The Home Office was approached for comment.
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