The Supreme Court held that mistreating migrant domestic workers because their immigration status made them vulnerable is not, without more, discrimination because of nationality. Ms Taiwo and Ms Onu, both Nigerian domestic workers, had been exploited by their employers, but the reason was their precarious immigration position, not the fact that they were Nigerian. Their appeals under the Race Relations Act 1976 and the Equality Act 2010 were dismissed.
Two domestic workers
Ms Taiwo worked in a private household on a domestic worker’s visa. The tribunal found that her employers had exploited her vulnerability.
Ms Onu entered the UK on a domestic worker’s visa and worked for a different household. She too left her employers and pursued employment claims.
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Both women brought claims over pay and treatment at work. Only the race-discrimination issues were before the Supreme Court.
How the discrimination claims reached the Supreme Court
The issue on appeal was whether the mistreatment was race discrimination. Under both the Race Relations Act 1976 and the Equality Act 2010, race includes nationality and ethnic or national origins. Some of Ms Taiwo’s employment was covered by the 1976 Act, because the relevant provisions of the 2010 Act came into force only on 1 October 2010, but Lady Hale said that this made no material difference.
In Ms Taiwo’s case, the employment tribunal found that she was treated as she was because she was a vulnerable migrant worker reliant on her employers for continued employment and residence, not because she was Nigerian. Another worker whose employment and residence depended on immigration control would have been treated in the same way, including a Ugandan worker. The Employment Appeal Tribunal upheld that conclusion. It held that the indirect-discrimination claim had not been properly analysed, but that no tenable provision, criterion or practice had been identified.
In Ms Onu’s case, the employment tribunal reached the opposite conclusion. It found that she had been treated less favourably than someone who was not a migrant worker, and that her migrant-worker status was “clearly linked” to her race. The Employment Appeal Tribunal allowed the employers’ appeal. It held that the treatment was bound up with her subordinate position and the economic contrast between work in the United Kingdom and poverty in Nigeria, not with her race. It also rejected a suggested practice of mistreating migrant domestic workers, because that was not a neutral criterion applied across a wider group.
The Court of Appeal heard the discrimination appeals together. It held that immigration status had played a significant part in the employers’ reasons. That conclusion was not appealed. It held, however, that immigration status is not nationality: many non-British nationals working here do not share these workers’ particular dependence. It also held that the mistreatment was not a provision, criterion or practice of the kind indirect discrimination addresses. Ms Taiwo appealed on the nationality issue. Permission was granted to Ms Onu because of the importance of that issue.
Immigration status and nationality
Lady Hale, with whom Lord Wilson, Lord Reed, Lord Hughes and Lord Toulson agreed, said that the conduct would have been unlawful direct discrimination if it had been because of nationality. The workers had been treated disgracefully, and not as workers without their vulnerable immigration status would have been treated. The question was whether discrimination because of immigration status is discrimination because of nationality.
For the workers, it was argued that immigration status is a function of nationality and indissociable from it. British nationals have a right of abode, whereas non-British nationals are potentially subject to immigration control. Analogies were drawn from Article 14 of the European Convention on Human Rights, racially aggravated offences, and official guidance on avoiding discrimination while preventing illegal working.
Lady Hale did not treat those analogies as decisive. Article 14 uses an open-ended list ending in “other status”, so immigration status can qualify without being nationality. A broad approach is also easier to justify in a criminal provision concerned with particularly hurtful offending. The Equality Act is different: it limits freedom of contract to protect specified groups, so the line between protected and unprotected characteristics is crucial. Parliament could have included immigration status, but did not. Lady Hale added that specific defences would have been needed, because many people with limited or no leave cannot lawfully work or use certain public services.
Immigration status is a function of nationality, but it takes many forms. Apart from Irish citizens, non-British nationals are subject to immigration control, yet some have no status, some have only limited leave, some may work and some may not, and some have indefinite leave to remain. These two workers had limited leave on domestic workers’ visas. At the relevant time, such visas were typically granted for a year, though renewable, to people who had already worked abroad for the employer or the employer’s family for at least a year, and a change of employer required immigration approval. In practice, they depended on their current employers for the right to live and work here. Many other non-British nationals do not share that vulnerability. The employers were themselves non-nationals, but were not vulnerable in the same way. Lady Hale accepted that they would not have treated British workers, or non-British workers with a right to live and work here, so badly. The reason was the workers’ particular immigration status, not the fact that they were Nigerian.
She regarded that conclusion as consistent with the approach in Patmalniece, applying Schnorbus and Bressol, and in Preddy v Bull. Those authorities concerned whether conduct was direct or indirect discrimination, not whether a characteristic fell within the statutory definition. Direct discrimination requires a criterion which is the protected characteristic, or which is necessarily linked to a characteristic indissociable from it, so that the advantaged and disadvantaged groups coincide exactly with the prohibited classification. A residence requirement which some but not all non-nationals fail is indirect discrimination. There was no exact correspondence with nationality here. The same inquiry applies where the tribunal examines mental processes rather than an express rule: the criterion actually adopted must still be a prohibited characteristic. As counsel for the workers accepted, that criterion was being a particular kind of migrant worker whose status made her vulnerable to abuse.
Indirect discrimination
Counsel accepted that these cases were direct discrimination or nothing. Lady Hale agreed, and treated the inability to fit them within indirect discrimination as further support for her conclusion. Under section 19 of the Equality Act 2010, indirect discrimination requires a provision, criterion or practice applied to people with and without the protected characteristic, which places the protected group and the claimant at a particular disadvantage and which cannot be justified. The differently worded 1976 Act rested on the same basic principle. No rule could be identified which these employers would have applied to every worker. The only candidate was mistreatment of workers made vulnerable by immigration status. By definition, that would not be applied to workers who were not vulnerable, so it was not indirect discrimination. Lady Hale nevertheless accepted that another exploitation case might disclose such a practice, describing “never say never” as wise advice.
The appeals therefore failed. Lady Hale stressed that this was not because the workers did not deserve a remedy for the grievous harms they had suffered. Contract, tort and the employment claims already upheld could redress some harms, but not the humiliation, fear and severe distress. A slavery and trafficking reparation order under section 8 of the Modern Slavery Act 2015 can be made only after a conviction and a confiscation order. She said that Parliament might wish to consider whether that remedy is too restrictive, and whether an employment tribunal should be able to compensate workers such as these for the ill-treatment itself.
Verdict: The Court granted Ms Onu permission to appeal and unanimously dismissed both appeals. On the findings, the employers exploited vulnerability arising from the workers’ immigration status. The Court left open whether a different practice could amount to indirect race discrimination.
