18 March 2014 #Immigration
The Claimants in the cases of Owu v Akwiwu; Taiwo v Olaigbe were both Nigerian nationals who came to the UK after being granted visas to work as migrant domestic workers for two separate families. Both were subsequently badly treated and exploited by their employers, through long working hours, underpayment, restrictive living conditions and physical and verbal abuse.
The Claimant’s were successful in a number of claims in separate proceedings, including for unfair dismissal, breaches of Working Time Regulations and breach of the National Minimum Wage. Whether they were racially discriminated against however, was to be determined in the negative by the Court of Appeal. The timing of the claims covered both the Race Relations Act 1976 (RRA 1976) and the Equality Act 2010 (EA 2010). Both define the protected characteristic of race as including ‘colour’, ‘nationality’ and ‘ethnic or national origins’.
In relation to race discrimination claims the Employment Tribunals (ETs) in both cases had separately found as fact that neither claimant was treated as they were because she was Nigerian (ethnic or national origins) or because she was black (colour). The ETs had found however, that the reason for the treatment was because of their vulnerability as migrant workers, subject to immigration control. Both were recognised as being particularly vulnerable to mistreatment because of their migrant domestic worker immigration status, which meant that they were dependent upon their employers for their right to work and remain in the UK. On this basis, one ET found that this constituted direct race discrimination (through nationality) but not indirect, while the other ET found neither direct nor indirect race discrimination to be present.
The Employment Appeal Tribunal held that vulnerable migrant status was not direct race discrimination and also could not be indirect discrimination.
In the Court of Appeal, to determine whether the claimants were mistreated through their nationality (and so whether direct race discrimination was present) Underhill LJ asked (1) whether the mistreatment was because of their immigration status and if so, (2) whether immigration status could be equated with nationality.
The very vulnerability of their immigration status was found by the Court of Appeal to have influenced their employer’s actions towards them. While not the only reason for the mistreatment, it was sufficient that their immigration position significantly influenced their employer’s actions, who were found effectively to have been taking advantage of their vulnerable status.
However, immigration status did not equate with nationality for the purposes of determining whether the mistreatment was ‘on the grounds of’ (RRA 1976) or ‘because of’ (EA 2010) the protected characteristic of race.
To be discrimination, it was recognised that the ground or reason for the treatment must exactly correspond to a protected characteristic. In these cases the claimant’s vulnerable immigration status did not exactly correspond to nationality and the protected characteristic of race, as not all non-British nationals working in the UK are migrant domestic workers nor are they all vulnerable by their right to work being dependent upon their current employer. While mistreatment was certainly present, it was not on the grounds of/because of nationality and so could not form direct race discrimination.
In relation to indirect discrimination, it was argued for the Claimants that the mistreatment and abuse of them as migrant domestic workers formed a provision, criterion or practice (PCP) which disadvantages those sharing the particular protected characteristic of race, disadvantaged the claimants and could not be justified. However, the Court of Appeal rejected this argument.
While it was noted that ‘mistreatment of migrant domestic workers’ as a concept could not itself form a PCP, more importantly if the reason for the mistreatment did not form direct discrimination it could not then form a discriminatory PCP either. Having vulnerable migrant status formed the identified reason for the specific acts of mistreatment (excessive working hours, underpayments etc). But as this did not correspond to a protected characteristic for the purposes of direct discrimination, it could not then be converted into being a discriminatory PCP to form indirect discrimination.
There was mistreatment present in both cases, but it is important to identify the reason for the treatment, which may not necessarily form discrimination of a protected characteristic. Although the Court of Appeal expressed sympathy with the Claimants’ aim to have exploitation of migrant domestic workers recognised as race discrimination, this could not be done without unacceptably distorting the statute.
Ann Marie Burke
Seconded from Carillion Advice Service