Taiwo & Anor v Olaigbe & Ors [2016] UKSC 31

Two Nigerian migrant domestic workers were severely mistreated by their employers who exploited their precarious immigration status. The Supreme Court held that discrimination because of immigration status is not the same as discrimination because of nationality under the Equality Act 2010.

Facts

Ms Taiwo and Ms Onu were Nigerian nationals brought to the United Kingdom on migrant domestic worker visas obtained by their respective employers, Mr and Mrs Olaigbe and Mr and Mrs Akwiwu (themselves non-British nationals). In both cases, the employers fabricated documents to obtain the visas, took the workers’ passports on arrival, withheld proper wages, denied rest periods, subjected the workers to long hours, and inflicted physical and/or psychological abuse. Ms Taiwo was slapped, spat at, mocked for her tribal scars, starved, and forced to hand over money. Ms Onu was made to work 84-hour weeks, threatened with arrest, and isolated. Both eventually escaped and brought employment tribunal claims.

The employment tribunals upheld claims under the National Minimum Wage Act 1998, the Employment Rights Act 1996, and the Working Time Regulations 1998, awarding substantial sums. However, the direct race discrimination claims diverged in outcome below, and ultimately the Court of Appeal held against both claimants on the discrimination issues. They appealed to the Supreme Court.

Issues

The principal question was whether discrimination because of, or on grounds of, immigration status amounts to discrimination because of, or on grounds of, nationality under the Race Relations Act 1976 and the Equality Act 2010. A subsidiary question was whether the employers’ conduct amounted to indirect discrimination against persons sharing the claimants’ nationality.

Arguments

Appellants

Mr Robin Allen QC argued that immigration status is a ‘function’ of nationality and indissociable from it: British nationals have an automatic right of abode while non-British nationals are subject to immigration control. He relied on the flexible approach to nationality adopted under Article 14 ECHR (citing R (Morris) v Westminster City Council), the Crime and Disorder Act 1998 racially aggravated offences cases (Attorney-General’s Reference (No 4 of 2004); R v Rogers), and the UK Border and Immigration Agency’s Code of Practice.

Respondents

Mr Rahman, for Mr and Mrs Akwiwu, submitted that the mistreatment had nothing to do with the claimants being Nigerian; the employers themselves were non-nationals but were not vulnerable in the same way. The treatment arose from the claimants’ particular vulnerability as migrant domestic workers, not from their nationality.

Judgment

Lady Hale, with whom Lord Wilson, Lord Reed, Lord Hughes and Lord Toulson agreed, dismissed the appeals.

Direct discrimination

The Court held that immigration status, although a function of nationality, is not indissociable from it. There is a wide variety of immigration statuses ranging from illegal entrants, to those with temporary admission, to those with indefinite leave to remain. Many non-British nationals living and working in the UK do not share the particular vulnerability of migrant domestic workers on tied visas. The employment tribunals had found that the reason for the mistreatment was the claimants’ vulnerability arising from their immigration status, not their Nigerian nationality. The Court noted that had the employers employed non-British nationals with the right to live and work in the UK, they would not have been treated so badly.

Lady Hale applied the concept of ‘indissociability’ as developed in Patmalniece v Secretary of State for Work and Pensions, Schnorbus v Land Hessen, Bressol v Gouvernement de la Communauté Française, and Preddy v Bull. Direct discrimination requires either that the prohibited criterion is expressly applied or that it is indissociable from the criterion actually applied. Here, the criterion adopted by the employers was not nationality but, as Mr Allen acknowledged, being ‘a particular kind of migrant worker, her particular status making her vulnerable to abuse’.

Lady Hale emphasised the distinction between the Equality Act 2010 and statutes such as the Crime and Disorder Act 1998 or Article 14 ECHR: the Equality Act limits freedom of contract by protecting an enumerated list of characteristics, and the dividing line between protected and unprotected characteristics is crucial. Parliament could have included immigration status but chose not to.

Indirect discrimination

Mr Allen accepted that this was not a case of indirect discrimination. The only ‘provision, criterion or practice’ suggested—the mistreatment of vulnerable migrant workers—was, by definition, not one that would be applied to workers not so vulnerable. It therefore could not satisfy section 19 of the 2010 Act. However, Lady Hale accepted that in other cases involving exploitation of migrant workers, an indirectly discriminatory PCP might possibly be discerned.

Implications

The decision establishes that, for the purposes of the Race Relations Act 1976 and the Equality Act 2010, discrimination on grounds of immigration status is not the same as discrimination on grounds of nationality. Although immigration status flows from nationality, the two are not indissociable because non-British nationals occupy a wide variety of immigration statuses with differing degrees of vulnerability.

The judgment is significant for migrant domestic workers and the lawyers advising them: while employment law remedies (unpaid wages, working time, unfair dismissal) remain available, the statutory tort of race discrimination cannot be used to obtain compensation for injury to feelings caused by exploitation rooted in immigration vulnerability. Lady Hale expressly invited Parliament to consider whether the reparation remedy under section 8 of the Modern Slavery Act 2015 is too narrowly framed and whether employment tribunals should be able to grant recompense for the ill-treatment suffered by such workers.

The decision also clarifies the application of the ‘indissociability’ test in direct discrimination cases, confirming the approach in Patmalniece and Preddy v Bull, and that the test applies equally in ‘mental processes’ cases as in cases where an express criterion is applied. The judgment leaves open the possibility that indirect discrimination claims may succeed in other migrant exploitation contexts where an appropriate PCP can be identified.

Verdict: Both appeals were dismissed. The Supreme Court held that discrimination on grounds of immigration status does not amount to direct discrimination on grounds of nationality under the Race Relations Act 1976 or the Equality Act 2010, and the claims could not be reframed as indirect discrimination.

Source: Taiwo & Anor v Olaigbe & Ors [2016] UKSC 31