Interpretation of the definition of ‘protected characteristics’ under the Equality Act 2010 (EqA) arises frequently in Employment Tribunal claims. This article considers a recent case on race discrimination involving migrant workers.
When is an attribute inextricably linked to race to the extent that unfavourable treatment on the basis of that attribute can allow for a discrimination claim to arise? This is the question that was put before the Supreme Court in the cases of Taiwo (Appellant) v Olaigbe and another (Respondents) and Onu (Appellant) v Akwiwu and another (Respondents), which were heard together.
The Equality Act 2010
The Equality Act sets out that employees and other workers are protected against discriminatory treatment on the basis of race, which is a protected characteristic. In the act, race is defined as the following:
- Ethnic or national origins.
It should be noted that this is not necessarily an exhaustive list and recent case law has also established that it is possible to discriminate against someone on the basis of caste.
Treatment is considered to be discriminatory only in cases where the tribunal can be satisfied that the treatment occurred “because of” race. It is possible to suffer from race discrimination where a claimant is treated less favourably because of a characteristic that is inextricably linked to race.
The question put before the tribunal in Onu and Taiwo was whether or not migrant workers status is a feature so inextricably linked to nationality that discrimination on the basis of migrant status could be considered to be race discrimination.
Ms Onu and Ms Taiwo were Nigerian migrant workers. Both were employed as domestic workers and both were paid under the minimum wage, and subjected to verbal abuse and other derogatory treatments by their employer. In both cases, each claimant had been lawfully allowed to enter the country on a migrant domestic worker’s visa arranged by their employer. In both cases, each claimant’s employer took their passport and kept it. Ms Onu and Ms Taiwo subsequently claimed that the treatment they had suffered constituted both direct and indirect race discrimination.
In Ms Onu’s case, the Employment Tribunal was initially minded to accept that she was directly discriminated against and harassed on the grounds of race. They accepted that Miss Onu had been discriminated against on the grounds of her status as a migrant worker and that she had been treated less favourably than someone who was not a migrant worker. The tribunal held that this status was “clearly linked” to her race. The Employment Appeal Tribunal (EAT) was less persuaded and overturned this decision, finding instead that no part of the employer’s treatment was inherently bound up in her race but instead was based on her subordinate position and the specific nature of her migrant domestic worker’s visa.
In Ms Taiwo’s case, the tribunal was of the opinion that Ms Taiwo had suffered the treatment she had “due to her status as a vulnerable migrant worker who was reliant upon the Respondents for her continued employment and residence in the United Kingdom.” The tribunal did not accept that she was treated the way she was because she was Nigerian. The tribunal considered that a migrant worker of any other nationality who was reliant on the respondents to the extent that Ms Taiwo was would have been treated in the same way. The EAT upheld this decision.
The Court of Appeal upheld the findings of the EAT in both cases. Both cases were subsequently appealed to the Supreme Court.
In addition to the claims of discrimination, both Ms Onu and Ms Taiwo raised several claims relating to failure to comply with the National Minimum Wage Act 1998; unlawful deductions from wages under section 13 of the Employment Rights Act 1996 (ERA); failure to provide rest periods under the Working Time Regulations 1998; and failure to provide written terms of employment under section 1 ERA. These claims were upheld by the Employment Tribunal and were not appealed.
The Supreme Court ultimately upheld the findings of the junior courts, accepting that the treatment was on the basis of the “immigrant status” of each of the appellants, rather than directly related to their nationality. In considering this, the court gave great thought to an assessment of migrant status and how it related to nationality.
The Supreme Court did ultimately accept that immigrant worker status is undeniably linked to nationality, as workers of alternative nationalities are subject to immigration control, which British citizens are not. However, this was considered a function of nationality and it should not be considered to be the same as nationality for the purposes of the Equality Act. The Supreme Court noted that immigration status could easily have been included by parliament when introducing the EqA but it had decided not to do so.
A further finding in relation to Ms Taiwo and Ms Onu was that it was not solely their status as immigrant workers that led to the treatment but instead the specific form of visa allowing them to reside in the country that resulted in the unfavourable treatment occurring. It was noted that other migrant workers on alternative visas were unlikely to be treated in a similar way, because of greater protections and that the specific type of migrant visa that Ms Onu and Ms Taiwo were subject to was not specifically tied to their nationality.
Points for employers to consider
These cases and the treatment they relate to obviously fall upon the extreme end of what could be considered unfavourable treatment; however the legal points raised should be of value to all employers. Employers should keep in mind the following when assessing the reason behind any decision in relation to employee treatment:
- Why has this decision been taken, what is the specific factor that has subsequently led to the treatment?
- Is the basis of this treatment an attribute related to race?
- How closely linked to race is this attribute and can it be considered to be inextricably linked?
If an employer can satisfy themselves either that the factor is sufficiently distant from race or that the treatment is taking place for a reason not related to race, then they should feel comfortable that they are unlikely to face any potential race discrimination claims. However, it is important to note that even though the appellants’ discrimination claims were not upheld, the employers still needed to pay a hefty penalty to both Ms Onu and Ms Taiwo; in both cases, other claims relating to the negligent treatment the appellants suffered was successful. Should the treatment of an employee reach such a level, it is unlikely that success on a discrimination point will lead to a complete discharge of the case.
Modern Slavery Act
In concluding its judgment, the Supreme Court acknowledged that the law at present may be insufficient in the options available to it. The Supreme Court acknowledged that the appellants were subject to “grievous harms” but that the present law was simply unable to redress all of the harms suffered. The Supreme Court suggested that it may be appropriate for parliament to consider amendments to the existing law, particularly extending the tribunal powers to compensate migrant workers under the Modern Slavery Act 2015. Although it is unlikely that that this matter will be given any further consideration in the immediate future, it is a developing area of law that employers should remain aware of.
For more information on legal issues around migrant workers or any of the other issues raised in this article, or on discrimination matters or employment law in general, please contact Michael Tait in our Leeds Employment team by emailing [email protected] or calling 0131 344 0227.