Benjamin Gray discusses Taiwo v Olaigbe: Discrimination on Immigration Status is not Race Discrimination

The Supreme Court has held that
less favourable treatment on the grounds of or because of immigration status is
not discrimination because of nationality in Taiwo v Olaigbe and another [2016]
UKSC 31.

Background

This appeal consisted of two
cases (Taiwo, and Onu).
The Claimants in both were migrant domestic workers of Nigerian
origin. They were brought over to the UK
by their employing families, who provided false information to the authorities
to obtain domestic workers’ visas for them.
They were treated, in the words of the Court ‘disgracefully’ and
subjected to abuse and exploitation by their employers.

Each Claimant brought a claim in
the Employment Tribunal for various causes of action, both of which included
claims for breaches of the Equality Act 2010 (and, in Ms Taiwo’s case, the
preceding Race Relations Act 1976).

The Decisions Below

Both Tribunals held that the
reason for the Claimants’ treatment was their vulnerability owing to their
precarious immigration status. They
reached different views on whether that amounted to unlawful discrimination:

Taiwo held
that it was not: the reason for the treatment was because she was a vulnerable
migrant worker, not because she is of Nigerian origin. Another migrant worker in similar
circumstances of a different nationality would not have been treated any more
favourably.

Onu,
however, held that this was race discrimination, because her status as a
migrant worker was ‘clearly linked’ to her race.

The Employment Appeal Tribunal
upheld Taiwo and allowed the appeal in Onu. The cases then went to the Court of Appeal
together ([2014] EWCA Civ 279). The
Court there held that the Claimants’ immigration status formed a significant
part of the reason for their treatment.
However, the Court went on to hold that immigration status and
nationality were not equitable for the purposes of the Equality and Race
Relations Acts. There were many
non-British nationals who did not share the Claimants’ particular dependence
and vulnerability. Any claim for
indirect discrimination could not succeed as there was no coherent
identification of a relevant Provision, Criterion or Practice (PCP).

The Supreme Court

The Claimants appealed to the
Supreme Court on the core question of whether discrimination on the grounds of
immigration status was discrimination on the grounds of nationality within the
meaning of the Equality and Race Relations Acts.

Lady Hale, giving a judgment with
which the other Justices agreed, held that it did not.

Protected Characteristics in the
Equality Act and predecessor legislation aimed to protect specific groups who
have historically been discriminated against, and did so by interfering in
other parties’ rights to freedom of contract.
In that context, the dividing line between what characteristics are and
are not protected is crucial. Parliament
had chosen not to include immigration status in the Act, though it could have
done so.

Although immigration status is a ‘function’
of nationality, there are a wide variety of such statuses. In these particular cases, the vulnerability
of the Claimants was because of the terms of their visas. Many non-British
people live and work in the UK without this vulnerability. Although British nationals would not have
been treated as badly as the Claimants were, the same was also true had the
Claimants been non-British nationals with the right to live and work in the UK.

The reason for treatment was
therefore the particular immigration status, and the vulnerability it
gave rise to, and had nothing to do with their being Nigerians. The criteria the employers adopted was not
nationality but a particular kind of migrant worker.

Comment

The case requires careful reading
but the logic is clear: although there is a link between nationality and
immigration status, such a link is dissociable. Other Nigerians with a
different immigration status would not have suffered the same treatment as the
Claimants, and therefore one cannot treat immigration status as the same as
race.

Although the point was not argued
before the Supreme Court, the case also highlights the importance in Indirect
Discrimination cases of correctly identifying what the PCP is. This often trips up Claimants and needs to be
assessed carefully, in particular whether the treatment complained of really
falls within the scope of such a claim.
Lady Hale expressly refused to rule out the possibility of a successful
claim for indirect discrimination in a case involving migrant workers, but one
would have to carefully identify one that ‘would have applied to all their
employees, whether or not they had the particular immigration status of [the
Claimants]’.

Practitioners bringing claims on
behalf of migrant workers, or others in similar situations, should carefully
assess at an early stage what the reason for any treatment is said to be, how
best to plead it, and whether it truly fits within the Equality Act. It is useful to remember that an employer can
have multiple reasons for treating someone less favourably; discriminatory
motives only have to play a significant part.

On the appropriate facts race
discrimination could be made out in cases involving abuse of migrant domestic
workers. Close examination should be
made of the facts to see if there is material justifying the raising of an
appropriate inference. For example, an
employer may seek to hire a particular kind of migrant worker based on
perceptions about the nationality in question (e.g. an assumption of servility
or passivity compared with other nationalities).

Other remedies are also available
in the wider civil and criminal spheres, but come with their own problems. On the civil side proceedings are likely to
be more complex than in the Employment Tribunal, and there are greater costs
risks (although such matters may be covered by Legal Aid). On the criminal side, it is possible for
migrant workers to recover under a Slavery and Trafficking Reparation Order
under the Modern Slavery Act 2015, but such Orders require both a criminal conviction
(with a more onerous burden and standard of proof) and a confiscation order.

Lady Hale recognised these
limitations, suggesting that Parliament may wish to grant Employment Tribunals
some jurisdiction to compensate Claimants such as these.