In this week’s briefing, we report on a recent decision of the Supreme Court which concerned an alarming case of the mistreatment of migrant domestic workers by their employers.
The employees concerned were both Nigerian nationals who were employed as workers under a migrant domestic worker’s visa. Both of the individuals suffered significant mistreatment at the hands of their employers. Both employees resigned due to the mistreatment that they had sustained and brought claims for direct and indirect race discrimination, alongside other claims.
The claims were to be heard together and progressed through the Employment Tribunal, Employment Appeal Tribunal, Court of Appeal and then onto the Supreme Court who had to consider the question of whether their immigration status was a protected characteristic (falling with nationality) for the purposes of the Equality Act 2010.
Facts
The Claimants in these cases, Ms Onu and Ms Taiwo were both Nigerian migrant domestic workers, both of whom were employed by Nigerian families in the UK to undertake domestic work in their homes. Ms Onu was not paid the national minimum wage, nor was she provided with appropriate accommodation. Her employers also incorrectly informed her on a number of occasions that if she attempted to leave, she would be arrested and sent to prison due to her immigration status.
As regards Ms Taiwo, she was also not paid the national minimum wage and was subjected to poor living and working conditions. In particular, she was the subject of verbal and physical abuse and also had to work excessive hours (around 84 hours a week on average) without rest breaks.
Both Ms Onu and Ms Taiwo resigned as a result of the abuse and mistreatment and brought claims in the Employment tribunal for race discrimination, alongside other claims (including claims for failure to pay the national minimum wage).
In Ms Taiwo’s case, the Employment Tribunal concluded that her mistreatment did not occur because she was Nigerian but because of the fact that she was vulnerable by reason of the terms of her visa. As such, the race discrimination claim failed. This decision was upheld by the Employment Appeal Tribunal.
In Ms Onu’s case, her claims of race discrimination succeeded in the Employment Tribunal. This however was reversed by the Employment Appeal Tribunal. Both employees then appealed to the Court of Appeal who dismissed the appeals on the grounds that immigration status was not the same as nationality for the purposes of the Equality Act 2010. The Claimants then appealed to the Supreme Court.
Supreme Court Decision
The Claimants in this case argued that their immigration status was a function of nationality and was so closely connected as to be indissociable from it. It was effectively common ground that the conduct of the employers in these cases would amount to unlawful direct discrimination if it was because of race, as the individuals were treated in a way that other employees who did not share their vulnerable immigration status would have been treated. The Employment Tribunals had found that the vulnerability arose from, and was associated with their immigration status. Whilst the protected characteristic of race includes nationality, the Supreme Court have to determine whether discrimination because of their immigration status amounted to discrimination on the grounds of their nationality.
Whilst the Court accepted that the Claimants’ immigration status was a function of their nationality, it was the terms of the visas on which they had the right to live and work in the UK that made them particularly vulnerable to the mis-treatment, rather than purely their nationality. The migrant domestic worker’s visa was, at the relevant time, typically granted for a limited duration of up to a year and the individual worker would be dependent on their current employer to maintain their right to live and work in the UK. The Court found however that there were many non-British nationals living and working in the UK who did not share the same vulnerability as the Claimants and that it was unlikely that such other non-British nationals who had a more secure right to live and work in the UK would have been treated so poorly. The Court ultimately had to determine why the Claimants had been treated in the way that they had and consider the mental processes and motivations of the employers. If the criteria the employers adopted was a protected characteristic, then the claims of race discrimination would succeed.
The Court determined that the criteria adopted by the employers in relation to their treatment of the Claimants was not nationality as it did not have anything to do with the fact that they were Nigerian. The reason why the Claimants in this case were treated in the way they were was due to their immigration status and the associated vulnerability arising from this. The issue for the Court was to decide whether or not discrimination on the grounds of immigration status amounts to discrimination on the grounds of nationality. The Court observed that Parliament could have chosen to include immigration status in the lists of protected characteristics but it had not. Whilst the Court accepted that the Claimants had been treated “disgracefully”, unfortunately immigration status was not so closely associated with nationality to be indissociable. As a result therefore, the claim of direct discrimination failed.
As regards to the indirect discrimination claim, the Claimants’ Counsel had conceded during the hearing that this was not a case of indirect discrimination, as there was no provision criteria or practice which the employers would have applied to all their employees which could be identified.
Comment
Unfortunately, the Claimants’ case of race discrimination failed principally due to the fact that other Nigerians with a different immigration status would not have suffered the same treatment and therefore it could not be determined that they had been treated in the way they had because of their race. The Court did express concerns regarding this case and in particular, whether the rights of vulnerable migrant domestic workers were adequately protected by the law. Whilst such vulnerable workers had basic employment protection rights, such as the right to receive the national minimum wage and protections under the Working Time Regulations, no protection appeared to be offered in terms of compensating them for any non-financial loss.
Although the point was not argued before the Supreme Court, the case also highlights the importance in indirect discrimination cases of correctly identifying what the provision criteria or practice is. The Court expressly refused to rule out the possibility of a successful claim for indirect discrimination in a case involving migrant workers. It would be important to identify carefully a PCP that would have applied to all employees, whether or not they have the particular immigration status of the Claimants.
