Supreme Court

Onu v Akwiwu and another

Taiwo v Olaigbe and another

[2016] UKSC 31; [2016] WLR (D) 319

2016 April 20, 21; June 22

Baroness Hale of Richmond DPSC, Lord Wilson , Lord Reed , Lord Hughes , Lord Toulson JJSC

Discrimination — Race — Less favourable treatment — Migrant domestic worker of Nigerian nationality — Claim of mistreatment by employers on racial grounds — Tribunal finding treatment due to vulnerable migrant status not race — Whether status as migrant worker indissociably linked to nationality — Whether direct discrimination — Whether indirect discrimination — Whether claim of post-employment victimisation established — Equality Act 2010 ( c 15), ss 13, 19

Law reform — Whether necessary — Compensation for ill-treated workers — Migrant workers with limited leave to remain on domestic workers’ visas — Workers exploited and mistreated by employers — Whether employment tribunals ought to have jurisdiction to award compensation for ill-treatment where no unlawful discrimination

Facts

In each case the claimant was a Nigerian migrant domestic worker who, while employed in London, was exploited and treated badly by her employer. Each claimed that she had suffered racial discrimination, contrary to sections 13 and 19 of the Equality Act 2010. In each case an employment tribunal found that the claimant had not been so treated because she was Nigerian or because she was black, but because her migrant status made her vulnerable, since she was dependent on her employer for continued employment and residence in the United Kingdom. In the first case the employment tribunal held that such treatment constituted direct discrimination, and in the second case the tribunal held that it did not constitute either direct or indirect discrimination. The Employment Appeal Tribunal allowed an appeal by the employers in the first case and dismissed an appeal by the claimant in the second case, holding that in neither case did the mistreatment of the claimant constitute racial discrimination. The Court of Appeal dismissed the claimants’ appeals and held that immigration status was not to be equated with nationality for the purposes of the 2010 Act and its predecessor the Race Relations Act 1976 and that the factual situation in each of the claimants’ cases had nothing to do with the kind of mischief which the concept of indirect discrimination under section 19 of the 2010 Act was intended to address.

On the claimant’s application for permission to appeal in the first case and the claimant’s appeal in the second case —

Held

Held, application granted but both appeals dismissed. Race, which was a protected characteristic within the meaning of section 13(1) of the 2010 Act, included colour, nationality, and ethnic or national origin. The conduct of the employers towards the claimants would amount to unlawful direct discrimination if it had been motivated by the claimants’ race. However, as the employment tribunals had found, the claimants had been badly treated because of the vulnerability associated with their immigration status. Both claimants had limited leave to enter the United Kingdom on domestic workers’ visas and it was the terms of those visas which had given them their precarious immigration status and made them particularly vulnerable to the mistreatment which they had suffered at the hands of their employers. Parliament could have included immigration status within the list of protected characteristics but had not done so. Not all non-British nationals shared the same vulnerability as the claimants and if the employers had employed non-British nationals who had the right to live and work in the United Kingdom, they would not have treated them so badly. The claimants’ ill-treatment had nothing to do with the fact of their nationality, and the claim for direct racial discrimination failed. There had been no indirect discrimination either since there was no provision, criterion or practice within the meaning of section 19(1) of the 2010 Act which the employers would have applied to all their employees, whether or not they had the particular immigration status of the claimants.

Per curiam

Per curiam The present law, although it can redress some of the harms which the claimants have suffered, cannot redress them all. Parliament may well wish to address its mind to whether the remedy provided by section 8 of the Modern Slavery Act 2015 is too restrictive in its scope and whether an employment tribunal should have jurisdiction to grant some recompense for the ill-treatment meted out to workers such as these, along with other remedies which it does have power to grant.

Appearances

Robin Allen QC and James Rowbottom (instructed by Anti-Trafficking and Labour Exploitation Unit) for the claimant in the first case.

Robin Allen QC and Christopher Milsom (instructed by Anti-Trafficking and Labour Exploitation Unit) for the claimant in the second case.

Sami Rahman and David Mold (instructed by BH Solicitors) for the employers in the first case.

Thomas Linden QC and Sara Hannett (instructed by Lewis Silkin LLP, Oxford) for the employers in the second case.

Reported by: Shiranikha Herbert, Barrister

© 2016. The Incorporated Council of Law Reporting for England and Wales.