The Equality Act outlaws discrimination on the grounds of different protected characteristics, including race. In Onu v Akwiwu and anor, the Court of Appeal held that it was not discriminatory to mistreat a worker on the basis of their immigration status as mistreatment on that basis and discrimination on the ground of a protected characteristic were separate issues.
Basic facts
This conjoined appeal concerned two Nigerian women who had come to the UK as domestic workers.
Ms Taiwo, a Nigerian, started working for Mr and Mrs Olaigbe in February 2010, but left in January 2011 claiming that they had systematically abused and exploited her. She brought a number of tribunal claims, including race discrimination.
Ms Onu, also a Nigerian woman who worked as a domestic servant for the Akwiwus, claimed her employers had been abusive and threatening towards her. She lodged a number of different tribunal complaints, including one for victimisation. This related to a telephone call allegedly made by Mr Akwiwu to Ms Onu’s sister in which he said that Ms Onu should withdraw her complaints if she didn’t want to “suffer for it”.
Tribunal and EAT decisions
The tribunal upheld most of Ms Onu’s claims (including direct race discrimination), but dismissed her complaints of indirect race discrimination and post-termination victimisation. The EAT dismissed both claims of race discrimination but found that post-termination victimisation was prohibited under the Equality Act (see weekly LELR 320).
The tribunal found that although Ms Taiwo had been badly treated, this was because she was a vulnerable migrant worker and not because of her race and dismissed her claims of direct and indirect race discrimination. The EAT agreed (see weekly LELR 319).
Decision of Court of Appeal
The Court of Appeal said that it had to decide whether the mistreatment the women had suffered was because of their immigration status and if so, whether their immigration status could be equated with their nationality.
It found that the employers in both situations were very conscious of the vulnerability of the women’s status as domestic workers and treated them badly on that basis. However, it rejected the argument that immigration status and nationality are so intimately linked that discrimination on the basis of the former constitutes discrimination on the ground of the latter.
Instead, it confirmed that discrimination on a particular ground will only be treated as discrimination on the grounds of a protected characteristic if that ground and the protected characteristic exactly correspond, which was not the case here. Mistreatment on the ground of immigration status and discrimination on the ground of a protected characteristic are, therefore, separate issues.
It also upheld Ms Onu’s claim of post-termination victimisation, finding that apart from some ”very particular circumstances, where a putative victimiser acts in response to the bringing of proceedings against him, he can be taken to be responding to – or, in the statutory language, acting "because of" – all the elements in those proceedings.
Comment
The crucial point in this case was that it was generally accepted that only people with non-British nationality are migrant domestic workers. But what matters is that not all non-British nationals working in the UK are migrant domestic workers or share an equivalent vulnerability.