Mistreatment on the grounds of a workers’ immigration status does not amount to race discrimination

The Supreme Court heard two cases concerning two Nigerian employees last month and considered whether the mistreatment of migrant domestic workers due to their vulnerable immigration status amounts to race discrimination. It was held that immigration status is not a protected characteristic for the purposes of the Equality Act 2010, meaning that the Nigerian employees did not suffer race discrimination.

Background

In Taiwo v Olaigbe and another; Onu v Akwiwu and another [2016] UKSC 31, Ms Taiwo, a Nigerian national, was employed by Mr and Mrs Olaigbe pursuant to a domestic worker’s visa. Ms Onu, also a Nigerian national, was employed by Mr and Mrs Akwiwu on a domestic worker’s visa.

The employment tribunal heard that both Ms Taiwo and Ms Onu were expected to be “on duty” during most of their waking hours, were not given rest breaks in accordance with the Working Time Regulations 1998 (SI 1998/1883) and were not paid the national minimum wage pursuant to the National Minimum Wage Act 1998. Additionally, both Ms Taiwo and Ms Onu were subjected to physical and mental abuse and Ms Taiwo was not given enough to eat, leading to dramatic weight loss during her employment.

Direct and indirect discrimination

In order to establish direct race discrimination it is necessary to show that, because of race, a person (A) treats another person (B) less favourably than A treats others.

In order to establish indirect race discrimination it is necessary to show that A applies a Provision, Criterion or Practice (PCP) to all its employees, including B who has a protected characteristic (such as race). It must then be established that the PCP puts those who share B’s protected characteristic to a particular disadvantage compared to those who do not have that protected characteristic, and specifically that the PCP puts B to that disadvantage. This will amount to indirect discrimination if A has no objective justification for applying the PCP.

The Supreme Court decision

With regard to the direct discrimination claim, the Supreme Court accepted that race as a protected characteristic included colour, nationality and ethnic origins, but that immigration status is only a function of nationality, in that only non-British nationals are subject to immigration controls. Ms Taiwo and Ms Onu’s cases for direct discrimination were rejected, on the grounds that Parliament chose not to include immigration as a protected characteristic for the purposes of the Equality Act 2010. The court stated that, although the appellants were particularly vulnerable due to their immigration status, there are many non-British nationals living and working in the UK who do not share this vulnerability and would not have suffered the same discrimination.

The Supreme Court also held that this was not a case of indirect discrimination, as there was no ‘Provision, Criterion or Practice’ applied by the respondents to all their employees regardless of immigration status.

Conclusion

In giving the judgment in the Supreme Court, Lady Hale expressed concern at the inadequacy of the law in protecting vulnerable migrant workers, who cannot be compensated for their non-financial losses under the current system. Lady Hale invited Parliament to address its mind to this injustice, suggesting that section 8 of the Modern Slavery Act 2015 is currently too restrictive in its scope and that employment tribunals should have jurisdiction to grant some recompense for the ill-treatment meted out to workers such as Ms Taiwo and Ms Onu.

However, despite the decision of the Supreme Court on the issues of race discrimination, both Ms Taiwo and Ms Onu received substantial awards in respect of their claims for breach of the National Minimum Wage and Working Time Regulations.

If you have any questions regarding this topic or any employment issue, please contact Linky Trott – Partner, or any member of the Edwin Coe Employment Team.

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