In Taiwo v Olaigbe and another case, the Supreme Court has held that while immigration status is a function of nationality, it is not so closely associated with nationality as to be indissociable from it. Accordingly, mistreatment of migrant domestic workers on the ground of their vulnerability due to their precarious immigration status did not amount to discrimination on the ground of nationality.
O and T were Nigerian migrant domestic workers who, while employed in London, were exploited and treated badly by their respective Nigerian employers. Each brought claims before different employment tribunals contending, inter alia, that they had been directly discriminated against because of their race contrary to S.13 of the Equality Act 2010. Both tribunals found that the treatment they had endured at the hand of their employers was not specifically because they were Nigerian or black but because their migrant status made them vulnerable by reason of being dependent on their employers for continued employment and residence in the UK. In O’s case the tribunal held that such treatment nonetheless constituted direct race discrimination in that her status as a migrant worker was linked to her race (i.e. nationality). In T’s case, however, the tribunal held that mistreatment related to migrant status did not constitute direct or indirect race discrimination, reasoning that there was no evidence that T’s employer would have treated her differently had she not been Nigerian. It accordingly rejected T’s claim. O’s employer and T appealed to the EAT.
The EAT heard both appeals back-to-back but in the event gave separate judgments in respect of each. It held that the mistreatment of O and T because of their vulnerability as migrant workers did not constitute direct race discrimination. It rejected the contention that their vulnerability was ‘indissociably linked’ with migrant status since such vulnerability can exist without it. The EAT therefore dismissed T’s appeal and reversed the finding of discrimination in O’s case. O and T then appealed unsuccessfully to the Court of Appeal. The Court took the view that the reason they were mistreated by their employers was vulnerability deriving from their immigration status and that they had therefore suffered that mistreatment on the ground of their status. However, this was an insufficient basis for a finding that they had been treated less favourably because of their nationality. In the Court’s view, discrimination on a particular ground will only amount to discrimination on the ground of a protected characteristic if that ground and the protected characteristic exactly correspond. O and T appealed further to the Supreme Court.
The Supreme Court dismissed the appeal, upholding the judgment of the Court of Appeal. There was no doubt that the treatment suffered by O and T would amount to unlawful direct discrimination if it was because of their race – which includes their national or ethnic origin. However, Lady Hale (with whom the rest of their Lordships agreed) held that discrimination against O and T on the ground of their precarious immigration status could not be said to be the same as discrimination on the ground of their race. She noted that Parliament could have chosen to include immigration status in the list of protected characteristics, but it did not do so. Thus, the question was whether immigration status was so closely linked to nationality that the two were indissociable from each other for the purposes of the EqA.
The Court accepted that immigration status is a ‘function’ of nationality, in that British nationals automatically have a right to live and work in Britain, whereas non-British nationals (other than Irish citizens) are subject to immigration control. However, there is a wide variety of immigration statuses, with some non-British nationals subject to greater restrictions on their rights to live and work here than others. In the present case, it was the terms of O and T’s domestic workers’ visas which made them particularly vulnerable, in that they were dependent on their employer for their continued right to live and work in Britain. By contrast, many non-British nationals living and working in Britain do not share this vulnerability and therefore would not have been treated so badly had they been employed by the respondents. In a case where the mental processes of the alleged discriminators are in issue, it is still necessary to determine what criterion they in fact adopted and, if a discrimination claim is to succeed, the relevant criterion must be one which falls within the protected characteristics. The criterion adopted by the employers in the present case was not nationality, but the particular immigration status of the employees.
The Court also held that this was not a case of indirect discrimination, as nobody had identified a provision, criterion or practice which the employers would have applied to all their employees, whether or not they shared the same immigration status as O and T. The exploitation of workers who are vulnerable because of their immigration status is not a PCP that can be applied to workers who are not so vulnerable, so applying it to O and T could not amount to indirect discrimination within the meaning of the EqA. However, this did not necessarily rule out the possibility that, in other cases involving the exploitation of migrant workers, it may be possible to identify a PCP which has an indirectly discriminatory effect.
In her concluding remarks, Lady Hale noted that the failure of the appeal did not mean that O and T did not deserve a remedy for the mistreatment they had suffered, and suggested that Parliament consider extending to the employment tribunals the jurisdiction to grant a remedy to workers such as O and T under S.8 of the Modern Slavery Act 2015, which can currently only be applied by the criminal courts against a person convicted of an offence of slavery or human trafficking under Ss.1 or 2 of that Act.