Labour & European Law Review Weekly Issue 481 03 August 2016
Although immigration status is a function of nationality and nationality is one of the protected characteristics under the Equality Act, it is not unlawful to discriminate against someone on the basis of their immigration status, according to the decision of the Supreme Court in Taiwo v Olaigbe and Onu v Akwiwu.
This conjoined appeal concerned two Nigerian migrant workers who had both come to the UK on domestic workers’ visas. Ms Taiwo, who was expected to work during most of her waking hours for minimal wages, was starved and subject to physical and mental abuse. Likewise, Ms Onu worked on average for 84 hours a week, without the required rest periods, nor was she paid the national minimum wage and she was threatened and abused by her employers.
The two women brought separate tribunal claims including failure to pay the national minimum wage, unlawful deductions from wages, failure to provide rest periods and to provide written terms of employment. They also brought claims for race discrimination.
Decisions of lower courts
The tribunal allowed all Ms Taiwo’s claims apart from race discrimination. This was dismissed on the basis that she was mistreated because she was a vulnerable migrant worker who was reliant on her employer for her continued employment and residence in the UK, not because she was Nigerian. Although Ms Onu’s claim of race discrimination succeeded at tribunal level on the basis that her status as a migrant worker was “clearly linked” to her race, this decision was overturned by the Employment Appeal Tribunal.
The Court of Appeal heard the appeals together and agreed that their discrimination claims should be dismissed on the grounds that immigration status could not be equated with nationality for the purpose of the Equality Act 2010. The Court reasoned that there were many non-British nationals working in the UK who did not share the dependence and vulnerability of these migrant domestic workers.
Supreme Court decision
Acknowledging that both women had been treated disgracefully by their employers, the Supreme Court nonetheless dismissed their appeals on the basis that discrimination on grounds of immigration status is not the same as discrimination on grounds of nationality.
Generally speaking employers can employ whoever they want, subject to the limits under the Equality Act (and earlier legislation). Parliament could have chosen to include immigration status in the list of protected characteristics within the Act but it did not do so.
The claimants argued that immigration status is a function of nationality. British nationals have a right to live and work here whereas non-British nationals (other than Irish citizens) are subject to immigration control. The Court held that while that was correct there is a wide variety of immigration statuses. In this case, Ms Taiwo and Ms Onu had limited leave to enter on domestic workers visas and it was those terms which made them particularly vulnerable to the abuse they suffered because they were dependent on their current employers for their continued right to live and work in the UK. But, equally, there are plenty of non-British nationals living and working in the UK who do not share this vulnerability and would not have been abused in the same way. The treatment of the women had therefore nothing to do with their nationality and they were therefore not the subject of direct discrimination.
Nor was this a case of indirect discrimination as there was no “provision, criterion or practice” as defined in section 19 of the Equality Act that their employers had applied to all their employees regardless of their immigration status.
As the present law did not offer redress for the harm suffered by the women, the Supreme Court suggested that Parliament might want to consider extending the remedy available under the Modern Slavery Act 2015 to give tribunals jurisdiction to grant compensation for ill-treatment meted out to workers.