Posted by Caroline Doran Millett, Partner
Abuse of migrant domestic workers is not race discrimination
In a case which the Update has followed through its progress up through the courts, Taiwo v Olaigbe and Another is the Supreme Court decision as to whether immigration status is sufficiently associated with nationality to be a protected characteristic. The case concerned the mistreatment of migrant domestic workers on the grounds of their vulnerability due to their precarious immigration status. The Supreme Court held that this did not amount to discrimination on the grounds of nationality.
The tribunals had found that the treatment of the migrant domestic workers, who were Nigerian, was not specifically because of their nationality but because of their vulnerable migrant status because they were dependant on their employers for continued employment and residence in the UK. In the case of O, the tribunal considered the treatment nonetheless constituted direct race discrimination because, as a migrant worker, her status was linked to her race and therefore her nationality. However in the case of T, a tribunal held that the mistreatment related to migrant status did not constitute either direct or indirect discrimination. The employer in the O case and the Claimant in the T case both appealed to the EAT and both appeals were heard together but separate judgments were given.
In both cases the EAT considered that vulnerability by virtue of being migrant workers did not constitute race discrimination. At that point, both Claimants remained unsuccessful and they both appealed unsuccessfully to the Court of Appeal. They finally appealed to the Supreme Court where their appeals were dismissed and the Court of Appeal judgments were upheld. The judgments stated that there was no doubt that their treatment would amount to unlawful direct discrimination if it was because of their race which includes national ethnic origin. However the unanimous decision was that the discrimination on the grounds of their immigration status could not be said to be the same as discrimination on the grounds of their race.
It pays to employ the right employment solicitor