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Supreme Court holds that mistreatment on the basis of a particular immigration status does not amount to race discrimination

4 July 2016

The particular immigration status of an individual can have the effect of perpetuating vulnerability in a working environment. The domestic worker visa regime illustrates how this scope for abuse can arise as the worker is typically tied to a specific employer and dependent on them for continuing employment and a place to live. Recently however, in the joint cases of Onu v Akwiwu and Taiwo v Olaigbe, the Supreme Court ruled that mistreatment based on a worker’s particular immigration status does not constitute race discrimination.

Both cases involved Nigerian domestic workers, who were treated appallingly by their Nigerian employers, by being subjected to physical and verbal abuse, and poor working and living conditions. They brought claims in the employment tribunal including for race discrimination. Ms Taiwo was initially successful as the tribunal considered her immigration status was “clearly linked” to her race, but this decision was overturned by the EAT on appeal. The Court of Appeal did not uphold their race discrimination claims.

Ms Onu and Ms Taiwo appealed to the Supreme Court. The main issue was whether discrimination on the grounds of immigration status amounts to discrimination on the grounds of nationality (which is included in the definition of race). The Court noted that immigration status is not included on the list of protected characteristics in the Equality Act 2010 and that Parliament could have chosen to include it, but did not do so. The issue was whether immigration status and nationality were so closely linked as to be indissociable from each other.

Although the Court acknowledged that immigration status is a function of nationality, it did not consider this is the same as nationality for the purposes of a discrimination claim. Drawing from the reasoning of the Court of Appeal, the Court noted that many non-British nationals living and working in the United Kingdom do not experience the same vulnerability as domestic workers. Therefore immigration status could not be equated with nationality. In the cases of Ms Onu and Ms Taiwo, the underlying reason for ill-treatment hinged on their subordinate position arising out of their particular immigration status; it had nothing to do with the fact that they were Nigerian. This meant there was no direct discrimination.

The Supreme Court further acknowledged that as no provision, criterion or practice had been identified, there was no indirect discrimination although it was keen to stress that this did not mean there could never be indirect discrimination in relation to the exploitation of migrant workers.

Practical points

  • The Supreme Court’s decision confirms that immigration status is not a protected characteristic under the Equality Act.
  • Despite the inability to pursue a discrimination claim, individuals employed as domestic workers may still claim for unfair dismissal (if they can establish employee status) and for breaches of the National Minimum Wage legislation and the Working Time Regulations. Both workers in these cases were awarded significant sums by the employment tribunals for unpaid wages, the national minimum wage, holiday pay and failure to give rest breaks.
  • The Supreme Court expressed unease about the inadequacy of the law in protecting vulnerable migrant domestic workers who may be suffering abuse by their employers. It suggested that Parliament may wish to amend the Modern Slavery Act 2015 to extend jurisdiction to employment tribunals which would enable them to award compensation for the humiliation and distress experienced by such workers.

This article was written by Anisha Vyas.

For further information, please contact Anisha Vyas on +44 (0)20 7427 6539 or anisha.vyas@crsblaw.com.