The ill-treatment of domestic migrant workers because of their immigration status does not amount to race discrimination under the Equality Act 2010

Bethan Odey and Emma Phillips, Senior Associates in our Birmingham office, comment: The recent case of Taiwo v Olgaigbe and another; Onu v Akwiwu and another [2016] UKSC 31 has highlighted the issues which can arise in respect of the employment rights of migrant workers. The case involved Ms Taiwo and Ms Onu, both Nigerian nationals who entered the UK lawfully with a domestic worker’s visa. Ms Taiwo and Ms Onu were subjected to mental and physical abuse, paid less than the minimum wage and denied the required rest periods. Eventually, Ms Taiwo and Ms Onu fled their employers and later brought employment proceedings against them.

In Ms Taiwo’s case the tribunal upheld her claims for unlawful deduction of wages, failure to provide the required rest periods and failure to provide written terms of employment. However, the tribunal dismissed her claims for direct and indirect discrimination under the Equality Act 2010. In Ms Onu’s case the tribunal upheld the same claims, but also held that Ms Onu had been constructively and unfairly dismissed, and that she had been directly discriminated against on the grounds of race.

The two decisions were appealed. The EAT dismissed Ms Taiwo’s appeal and upheld Ms Onu’s employer’s appeal, stating there had been no direct or indirect discrimination. The appeals were then heard jointly in the Court of Appeal where the decisions of the EAT were upheld. The decision of the Court of Appeal was itself appealed to the Supreme Court where it was held unanimously that the treatment of the two employees did not amount to direct or indirect discrimination.

The counsel for the employees conceded that this was not a case of indirect discrimination, which in the Supreme Court’s opinion supported the view that that the mistreatment was not because of the employees’ race but for other reasons. The Supreme Court considered that Parliament could have chosen to include immigration status in the list of protected characteristics, but it chose not to. Although immigration status is a “function” of nationality, the reason why the employees were treated so badly was because of their particular vulnerability arising from their immigration status. It had nothing to do with the fact that they were Nigerian.

The Supreme Court went one step further and advised that Parliament may wish to address whether the remedy provided by section 8 of the Modern Slavery Act, which introduced rules regarding supply chain transparency for organisations, is too narrow and whether the jurisdiction of an employment tribunal should be expanded to allow them to grant compensation for the ill-treatment handed out to employees such as Ms Taiwo and Ms Onu. It seems that without this change, vulnerable migrant workers will continue to be denied sufficient remedy for any grievous harm they may suffer. The new Prime Minister has since confirmed that a new UK cabinet taskforce will address violations of the Modern Slavery Act, £33.5 million will be provided in official development assistance funding and further powers have been granted to law enforcement bodies in respect of modern slavery at sea. The judgment in this case also highlights the importance of having in place correct right to work visas as, should a claim be brought by a migrant worker, this will highlight, in a public tribunal hearing, any deficiencies in respect of right to work documents.