Mistreatment of Migrant Workers due to Immigration Status not Race Discrimination
The Supreme Court has ruled that the mistreatment of two Nigerian migrant workers by their employers was not race discrimination.
The Supreme Court has rejected claims of race discrimination made by two Nigerian domestic workers who were mistreated by their employers. They were not treated badly because of their Nigerian nationality, but because of their vulnerability arising from their particular immigration status. Immigration status is not so closely associated with nationality as to be indissociable from it. They had not therefore been treated less favourably because of race.
In Taiwo v Olaigbe and Onu v Akwiwu, the claimants were Nigerian migrant domestic workers who were exploited and mistreated by their Nigerian employers. Their employers both supplied false information in order to obtain domestic worker’s visas for them and took their passports away when they arrived in the United Kingdom. They were required to work long hours, were not paid the National Minimum Wage and were not given proper rest breaks. Both were threatened and abused by their employers. Both eventually escaped and brought a number of employment tribunal claims, including claims of race discrimination.
In both cases, the employment tribunals found that the reason for their mistreatment was not because they were Nigerian, but because their migrant status made them vulnerable (due to being dependent on their employers for continued employment and residence in the UK). In Onu, the employment tribunal concluded that her treatment amounted to direct race discrimination. Ms Onu’s status as a migrant worker was linked to her nationality, and therefore her race. However, in Taiwo, the employment tribunal considered that Ms Taiwo’s status as a vulnerable migrant worker was not inextricably linked to her nationality and so did not amount to direct race discrimination.
The Employment Appeal Tribunal and Court of Appeal both ruled that there had been no race discrimination and the employees appealed to the Supreme Court.
The Supreme Court dismissed the appeals. Parliament could have chosen to include immigration status in the list of protected characteristics but had not done so.
Immigration status is not so closely associated with nationality as to be indissociable from it. Immigration status is a function of nationality. British nationals automatically have the right of abode in the UK and non-British nationals are subject to immigration control. But there is a wide variety of immigration statuses. Ms Taiwo and Ms Onu had limited leave to enter on domestic workers’ visas. It was the terms of those visas which made them particularly vulnerable to the mistreatment they suffered. They were dependent on their employers for their continued right to live and work in the UK. However, there are many non-British nationals living and working in the UK who do not share this vulnerability. If the employers had employed non-British nationals who had the right to live and work here, they would not have treated them so badly. The reason why the employer treated these employees so badly was their particular vulnerability arising, at least in part, from their particular immigration status. It had nothing to do with the fact that they were Nigerian.
Discrimination laws do not protect employees if they are mistreated because of their vulnerability arising from their immigration status. Whilst the employees in these cases obtained remedies for breaches of national minimum wage laws and the Working Time Regulations 1998, they could not obtain a redress for the humiliation, fear and distress suffered at the hands of their employers. Since the facts of these cases, the Modern Slavery Act 2015 introduced criminal offences of slavery, servitude and forced or compulsory labour and human trafficking. If a person is convicted of such an offence and a confiscation order is made against them, the court may also make a reparation order requiring them to pay compensation to the victim. The Supreme Court suggested that Parliament may wish to consider extending this power so that employment tribunals can award compensation to employees for the humiliation, fear and distress which such mistreatment can cause.
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