The Employment Implications (or Lack Thereof) of Abuse of Migrant Workers
On 22nd June 2016 the Supreme Court (Lady Hale with Lords Wilson, Reed, Hughes and Toulson) handed down probably one of the most significant decisions on the limits of the application of the provisions of the Equality Act 2010 addressing discrimination.
Taiwo v Olaigbe and another; Onu v Akwiwu and another  UKSC 31;  1 WLR 2653;  All ER (D) 134 (Jun) on 22nd June 2016 confirms less favourable treatment of a person on the grounds of their status as a vulnerable migrant worker is potentially many things (an actionable tort, a crime or breach of contract) but it is not unlawful discrimination.
The background to the case may be summarised as follows – Ms Taiwo and Ms Onu were Nigerian nationals who travelled to the United Kingdom on domestic migrant visas.
Ms Taiwo had entered the country in 2010 with a migrant domestic worker’s visa obtained by her employers, Mr and Mrs Olaigbe. However, it later transpired Mr and Mrs Olaigbe had manufactured her employment history and her contract of employment to secure her passage.
On arrival her passport was taken from her. She was required to work in excess of her Working Time Regulations 1999 safeguards without rest breaks provided for by the same. She was paid far less than the National Minimum Wage, sustained huge weight loss from lack of food, was insulted, was slapped and spat at.
Ms Onu’s circumstances were strikingly similar. A Nigerian National, she entered the UK in July 2008 on a domestic worker’s visa obtained by Mr and Mrs Akwiwu who also supplied false information to the UK authorities.
Her passport was taken on arrival and she was provided with a contract which threatened referral to the Police and immigration authorities should she abscond within a year. She received no employment particulars and worked an average of 84 hours a week without her Working Time Regulations rest breaks and was paid vastly less than minimum wage. She was repeatedly threatened by her employers until she fled in June 2010.
Both Tribunal Judges made numerous awards in respect of wages and failure to provide employment particulars, with Ms Onu also receiving an award for holiday pay and unfair dismissal and Ms Taiwo receiving an award for failure to provide rest breaks.
Both Tribunals found as fact that Ms Taiwo and Ms Onu had been mistreated on the ground of their precarious immigration statuses. But, whilst Ms Onu’s claims for discrimination and harassment on grounds of race succeeded on the basis of “a clear link” to her race, Ms Taiwo’s claims for indirect and direct race discrimination were dismissed.
The EAT upheld the Tribunal’s decision in Ms Taiwo’s case and overturned Ms Onu’s discrimination and harassment claims finding her treatment was not inherently bound up in her race but rather her subordinate position as a migrant worker.
The Court of Appeal heard both cases together. In short they found that immigration status could not be equated with nationality for the purposes of either the Race Relations or Equality Acts and mistreatment of migrant workers was not a provision criterion or practice.
The Supreme Court was asked, in respect of direct discrimination only, to resolve the sole question of ‘Whether less favourable treatment of an individual on grounds of their precarious immigration status amounts to race discrimination, specifically nationality?’
On behalf of Ms Taiwo and Ms Onu it was submitted that British nationals have a right of above which cannot be denied. All non-British nationals are potentially subject to immigration control.
Under other legislation including the European Convention on Human Rights and the Crime & Disorder Act 1998 as well as the UK Boarder Agency’s Code of Practice, nationality had been extended to include immigration status and ‘being foreign’.
The Supreme Court sympathised greatly with the Claimants but felt bound to interpret the Equality and Race Relations Acts as self-contained independent statutes unfettered by other legislation or codes of practice. Parliament could have chosen to include immigration status but did not.
The Court was in no doubt that had British Nationals been employed, they would not have been treated so badly. The reason for Ms Onu and Ms Taiwo’s treatment was their nationality but, as demonstrated on the Employers’ behalf, this had nothing to do with the fact they were Nigerian. This dispensed with the direct discrimination claims.
The impact of the decision is a disappointing one (even in the eyes of the Supreme Court Judges dealing with the case) but a timely reminder of the limits of judicial interpretation and the self-contained nature of the Equality Act is a piece of legislation.
Few would disagree that Ms Twaiwo and Ms Onu required recompense for the wrongs afforded to them but it is now clear that, for the time being at least, the jurisdiction of the Employment Tribunal does not offer that recourse.
No doubt the Government will consider whether, at a time when immigration and asylum are topics at the forefront of minds spanning the whole political spectrum, amendment of the legislation is necessary to protect some of the most vulnerable in our society. Indeed, with the exit from the European Union, mistreatment on grounds of immigration status will become even more far reaching and provides an unfair technical defence to many unscrupulous employers.
Sarah England, Partner at Gales Solicitors has been providing expert legal advice on employment issues for over 10 years. Sarah has a keen interest in discrimination, unfair dismissal and national minimum wage claims.