Legal action launched over government decision to award framework agreement to supplier accused of using forced labour

On the evening of 9 December 2021 framework agreements totalling £6 billion were awarded to 58 potential suppliers to provide medical examination gloves and surgical gloves to the NHS. One of these suppliers is Supermax Healthcare Limited, the UK based subsidiary of the Malaysian based Supermax Corporation Bhd. The company has been accused of using forced labour and exploitation in their manufacturing factories in Malaysia.

The decision came despite the US Customs and Border Patrol issuing a “Withhold Release Order” which banned imports from the Malaysian glove manufacturer Supermax Corporation into the United States. The ban was implemented following an investigation by the US authorities which identified 10 out of 11 forced labour indicators present within the operations and practices of Supermax Corporation. The investigation concluded that Supermax Corporation and its subsidiaries produce gloves in violation of US trade law. Bans have been placed on several other glove suppliers in Malaysia, including Topglove, WRP, Smart Glove and Brightway Holdings.

Wilson Solicitors LLP represent a number of former and current Supermax workers who are affected by the abusive conditions in their glove manufacturing factories. We have been writing to the UK authorities on behalf of our clients raising concerns since March this year, in particular highlighting reports of the issues at Supermax factories. The authorities have been quoted in the media as relying on their stringent due diligence laws. However despite all the allegations no contracts with any of their suppliers sourcing from Malaysia have been ceased and having signed a new framework agreement further orders will likely be placed to these companies.

The UK Government also launched its own investigation into Supermax after the issue was raised in the House of Lords. Officials at the Department for Business, Energy and Industrial Strategy (“BEIS”) are currently investigating Supermax in relation to the allegations of modern slavery and forced labour being used in the production of their gloves. Despite the ongoing BEIS investigation and the outcome of the US CBP investigation concluding that there is “ample evidence” that the corporation produced its rubber gloves in conditions of forced labour, exposing vulnerable individuals to inhumane working conditions, NHS Supply Chain have once again decided to assign a framework agreement to the corporation’s subsidiary Supermax Healthcare Limited.

Nusrat Uddin is the lead solicitor at Wilson Solicitors on this case. Her team prepared a pre-action protocol letter earlier this month. The letter is the first stage before a judicial review of the government’s decision. She said:

“We expected that the due diligence, monitoring and enforcement mechanisms would ensure that serious concerns around labour standards, would be effectively addressed. We have not been satisfied by the authorities’ response to our concerns. The legal requirements are clear that there should be real verification of suppliers before the award stage, but it is not clear that these necessities have been met. It is inadequate for the government to carry out due diligence after the award stage, their approach undermines the UK’s claims that they are world leading in the fight against modern slavery and highlights the weakness in their own legislation, policies and practices.

We have asked NHS Supply Chain to reconsider its decision to award the framework agreement to Supermax Healthcare Limited in line with its legal obligations or face further legal action in respect of its failures.”

Danny Bayraktarova, a solicitor working closely with Ms Uddin on this case, said:

“The UK Government has made a commitment to tackle modern slavery in its supply chains. The Government recognises that it can use its buying and spending power in order to hold businesses accountable and mitigate the risks of modern slavery occurring it its own supply chains. It is therefore concerning that a new framework agreement has been awarded to Supermax, despite strong evidence of the use of forced labour in the company’s manufacturing processes. Our judicial review claim seeks to hold the Government to account for their failure in following their own due diligence processes and perpetuating the cycle of modern slavery in its supply chains.”

The Citizens, a media not-for-profit, have joined the legal case as co-claimants with the workers. The organisation has been at the forefront of investigating contracts awarded during the Covid-19 pandemic and has reported on a wide range of abuses of power. They are concerned that despite the reports on this issue the government continues to award business to Supermax and other Malaysian glove suppliers.

Clara Maguire, Executive Director of the Citizens said:

“If the US government’s investigation has found material to support the presence of 10 indicators of forced labour at Supermax factories it is concerning that the UK government’s own due diligence has been unable to find any credible allegations as they suggest.

What we know is that the UK NHS spends billions on medical gloves each year. We also know that a huge proportion of the world’s medical gloves are made in Malaysia and thus it is inevitable that the UK will be sourcing from Malaysia. In the light of widespread concerns about modern slavery in the Malaysian glove industry, we would expect the UK authorities to use its buying power to demand better working conditions from their suppliers and raise standards in this industry. The US authorities have utilised their due diligence to stop these tainted gloves being imported into the US, whereas the UK authorities continue to source them themselves. The differences in their approach is stark and something must be done to improve the UK’s approach to forced labour in supply chains.”

The Citizens have opened a Crowdfunding page in order to raise funds for the legal costs needed to pay for the legal challenge. You can support their crowdfunding campaign here.

Legal proceedings are due to be issued at the Administrative Court at the High Court of Justice in London by 7 January 2022. Barristers Eleanor Mitchell from Matrix Chambers and Jason Coppel QC from 11 Kings Bench Walk are instructed.

The legal action has garnered media attention with articles published by The Guardian and Reuters which can be accessed here and here respectively.

Our Public Law team specialise in bringing judicial review claims. Please contact our Danny Bayraktarova at d.bayraktarova@wilsonllp.co.uk for more details.

To arrange an appointment to see Nusrat, Danny, or another solicitor in the public law team please contact Penny on 0208 885 7924 (or complete our online contact form if you prefer).

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