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When domestic workers are abused and mistreated by employers because their immigration status puts them in a vulnerable position, does this amount to discrimination on the grounds of race?
The Supreme Court has given judgment in the conjoined cases of Taiwo v Olaigbe and Onu v Akwiwu, dealing with this question.
The circumstances of Ms Taiwo's and Ms Onu's claims were strikingly similar. Both are Nigerian nationals who came to the UK legally on a domestic worker's visa. In both cases, the families with whom they lived and worked made false statements in order to secure their visa, and then made them work punishing hours on low pay with little or no holiday, and subjected them to abuse that, in one case, the Employment Appeal Tribunal called 'systematic and callous exploitation'.
Fortunately, both managed to escape from this mistreatment and both were successful in claims against their employers for unfair dismissal, unlawful deductions from wages, and other claims relating to holiday and terms of employment.
They both also sued for race discrimination. In the Employment Tribunals, one lost and the other won that element of their claims. On subsequent appeals to the EAT and Court of Appeal, it has twice been decided that the mistreatment was not on the grounds of race and therefore the discrimination claims failed. The Supreme Court has now confirmed that point.
Appeal to the Supreme Court
Both sides in the appeal accepted that the reason for the employers' actions was because they knew that the employees were vulnerable because of their visa status. Domestic workers' visas are typically granted for a year, although renewable, and the employee would have to seek the approval of the immigration authorities for any change of employer while here. In practice, therefore, such workers are usually dependent upon their current employers for their continued right to live and work in this country.
The appellants' argument was that immigration status is a function of nationality and is indissociable from it. Therefore, less favourable treatment because of immigration status must also be because of race.
However, the Supreme Court observed that there are many non-British nationals living and working in the UK who do not share the vulnerability of these employees. It accepted that the employers in these cases would not have treated British nationals so badly. But the court also found that it was just as unlikely that they would have subjected non-British nationals who had the right to live and work in the UK to such treatment. The reason why these employees were treated so badly was their vulnerability arising from their particular immigration status. It had nothing to do with the fact that they were Nigerians.
At the end of the Supreme Court's judgment, it suggested that Parliament may wish to amend s 8 of the Modern Slavery Act 2015 to allow an employment tribunal to grant some recompense for the ill-treatment meted out to workers such as these without the prerequisite for a criminal conviction, as is currently the case.