Abuse of migrant domestic worker not automatically race discrimination
In a recent case considered by the Supreme Court, it has been held that, while immigration status is a function of nationality, it is not so closely associated with nationality, as to be dissociable from it. Accordingly, the mistreatment of migrant domestic workers because of their vulnerability due to their precarious immigration status, did not automatically amount to discrimination on the ground of their nationality.
The case involved Nigerian migrant domestic workers who, while employed in London, were exploited and treated badly by their respective Nigerian employers. They claimed direct race discrimination under Section 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.
The Court of Appeal also took the view that the reason the workers were mistreated by their employers was due to their 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. The Court of Appeal’s view, was that 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.
The Supreme Court also dismissed the appeal, upholding the judgement of the Court of Appeal. They said that there was no doubt that the treatment suffered by the workers would amount to unlawful direct discrimination if it was because of their race, which includes their national and ethnic origin. However, in her judgment Lady Hale said that the discrimination against the workers, 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 that it did not do so. Thus the question was whether immigration status was so closely linked to nationality that the two were in-dissociable from each other for the purposes of the Equality Act.
The Supreme 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. the Court found that there is a wide variety of immigration statuses for non-British nationals. In the case of these workers, it was the terms of their workers’ visas which made them particularly vulnerable because they were dependent on their employer for the 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. The criterion that the alleged discriminators adopted in this case, was about the workers particular immigration status, rather than their nationality.
The Supreme 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 these workers. 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 these workers could not amount to indirect discrimination within the meaning of the Equality Act. 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 conclusions, Lady Hale noted that the failure of the appeal did not mean that the workers did not deserve a remedy for the mistreatment they had suffered. She suggested that parliament consider extending to the Employment Tribunals, the jurisdiction to grant a remedy to workers such as these, under Section 8 of the modern Slavery Act 2015, which can currently only be brought in the criminal court.
For further information or advice please contact a member of the employment team.