Supreme Court on nationality, immigration status and discrimination
Tuesday 5th July 2016
The Supreme Court has held, in the cases of Taiwo v Olaigbe & another and Onu v Akwiwu & another, that the mistreatment of migrant workers as a result of their vulnerable immigration status did not amount to discrimination on the grounds of nationality contrary to the Equality Act 2010.
Ms Taiwo and Ms Onu were both domestic workers from Nigeria. They entered the UK with visas obtained by two different employers, who had both fabricated documents and background information in order to obtain the visas. Ms Taiwo and Ms Onu’s ability to remain in the UK was dependant on their continued employment, which left them vulnerable to mistreatment.
Both employees brought ET proceedings, including claims for direct and indirect discrimination. The ET in both cases found that the employees had not been mistreated specifically because they were Nigerian or because they were black.
Ms Taiwo’s claim of discrimination was not upheld as the ET concluded her employer would not have treated her any differently had she not been Nigerian. However, a different ET hearing Ms Onu’s case concluded that her treatment did constitute direct discrimination, because her migrant status was linked to her race. Ms Taiwo and Ms Onu’s employer appealed to the EAT.
The EAT held there had been no discriminatory treatment. Appeals to the Court of Appeal were unsuccessful. The Supreme Court has now upheld the CA decision in both cases, holding that the treatment would amount to direct discrimination if it had been on the grounds of race (which includes nationality), but that mistreatment because of their “precarious immigration status” was not the same. It was noted that Parliament could have included immigration status in the EqA, but did not do so.
The Supreme Court identified the key question as “whether immigration status is so closely associated with nationality that they are indissociable”. Whilst clearly a function of nationality, immigration status and the restrictions attached to that status vary greatly, making some more vulnerable to mistreatment than others. It was the specific terms of Ms Taiwo and Ms Onu’s domestic worker visas, not their nationality, which made them vulnerable as their right to live and work in the UK was dependent on their continued employment with the same employer. Consequently, immigration status and nationality were not “indissociable” and there was no direct race discrimination.
The Supreme Court also held that there had been no indirect race discrimination, considering that the only possible PCP applied by the employers was “the mistreatment and exploitation of workers who are vulnerable because of their immigration status”. Establishing indirect discrimination requires that the PCP, after being applied to all employees, produces a discriminatory effect on a particular category. The PCP identified in this case could not be applied to a wider category of persons i.e. employees that were not so vulnerable.
Lady Hale suggested, in her final remarks, that Parliament should consider extending the ET’s jurisdiction to allow a remedy under the Modern Slavery Act 2015. This currently requires a criminal conviction to have been made.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.