In Taiwo v Olaigbe and Onu v Akwiwu, the Supreme Court has held that although the severe mistreatment of migrant domestic workers was because of their immigration status, this did not amount to race discrimination.
Ms Taiwo and Ms Onu were Nigerian nationals working for two separate Nigerian families in London under “domestic workers in a private household” visas. They were both exploited and treated extremely badly by their respective employers and, once they managed to escape, each brought a variety of claims in the Tribunal and were awarded compensation for not receiving the minimum wage and not being allowed rest breaks. However, on appeal, the EAT and Court of Appeal both held that they had not been racially discriminated against.
The claimants appealed to the Supreme Court which had to decide whether their mistreatment because of their vulnerability as migrant workers constituted direct race discrimination. As immigration status does not appear on the list of protected characteristics in the Equality Act, the Court had to decide whether immigration status was so closely linked to nationality that the two could not be separated. Whilst the Court agreed that immigration status is a ‘function’ of nationality, in that British nationals have the right to live and work here but others are subject to immigration control, there are many different kinds of immigration status and, in this case, it was the terms of the claimants’ visas (and their dependence on their employer) which made them particularly vulnerable. Many non-British nationals working in Britain do not share this vulnerability and therefore would not have been treated so badly in the same circumstances. Given that the Tribunals had found that the reason for the employees’ treatment was their immigration status not their nationality, the claim for direct discrimination could not succeed.
Whilst the facts of this case are (hopefully) quite unusual, it does highlight the importance for employers of understanding and articulating the reason for an employee’s treatment in a potential direct discrimination claim. When it comes to dealing with employees on UK visas, whilst the finding that immigration status does not necessarily fall within the protected characteristic of race is helpful, employers still need to think carefully about why they might be treating such staff differently or less favourably, as a Tribunal could still find that the difference in treatment is in fact owing to their nationality rather than immigration status.