JUDGMENT
Taiwo (Appellant) v Olaigbe and another
(Respondents)
Onu (Appellant) v Akwiwu and another
(Respondents)
before
Lady Hale, Deputy President
Lord Wilson
Lord Reed
Lord Hughes
Lord Toulson
JUDGMENT GIVEN ON
22 June 2016
Heard on 20 and 21 April 2016
Appellant (Taiwo) Respondent (Olaigbe)
Robin Allen QC Thomas Linden QC
Christopher Milsom Sarah Hannett
(Instructed by Anti
Trafficking and Labour
Exploitation
)
(Instructed by Lewis
Silkin LLP (Oxford)
)
Appellant (Onu) Respondent (Akwiwu)
Robin Allen QC Sami Rahman
James Robottom David Mold
(Instructed by Anti
Trafficking and Labour
Exploitation
)
(Instructed by BH
Solicitors
)
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LADY HALE: (with whom Lord Wilson, Lord Reed, Lord Hughes and Lord
Toulson agree)
1. The mistreatment of migrant domestic workers by employers who exploit
their employees’ vulnerable situation is clearly wrong. The law recognises this in
several ways. Depending on the form which the mistreatment takes, it may well
amount to a breach of the worker’s contract of employment or other employment
rights. It may also amount to a tort. It may even amount to the offence of slavery or
servitude or forced or compulsory labour under section 1 of the Modern Slavery Act
2015 or of human trafficking under section 2 of that Act. If a person is convicted of
such an offence and a confiscation order made against him, the court may also make
a slavery and trafficking reparation order under section 8 of the Act, requiring him
to pay compensation to the victim for any harm resulting from the offence. But such
orders can only be made after a conviction and confiscation order; and remedies
under the law of contract or tort do not provide compensation for the humiliation,
fear and severe distress which such mistreatment can cause.
2. Such a remedy could be found if the employer’s conduct amounts to race
discrimination under the Equality Act 2010 or its predecessor the Race Relations
Act 1976. This would have the added advantage that proceedings for the statutory
tort of race discrimination can be brought in an employment tribunal, at the same
time as proceedings for unpaid wages and other breaches of the contract of
employment and for unfair dismissal. The issue in this case, therefore, is whether
the conduct complained of amounts to discrimination on grounds of race. In both
the 1976 and 2010 Acts, at the relevant time, the definition of race also covered
nationality and ethnic or national origins. In the two cases before us, the employment
tribunals both found that the reason for the employers’ mistreatment of their
employees was their victims’ vulnerability owing to their precarious immigration
status. The principal question for this court, therefore, is whether discrimination
because of, or on grounds of, immigration status amounts to discrimination because
of, or on grounds of, nationality. The subsidiary question is whether the employers’
conduct amounted to indirect discrimination against persons who shared that
nationality.
Ms Taiwo’s case
3. Ms Taiwo is a Nigerian national of Yoruba and Nigerian ethnicity. She is
married and has two children but was living in poverty in Nigeria. She entered the
United Kingdom lawfully in February 2010 with a migrant domestic worker’s visa
obtained for her by Mr and Mrs Olaigbe, her employers. Mr Olaigbe is also a
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Nigerian of Yoruba ethnicity, but comes from a wealthy and influential family. Mrs
Olaigbe is a Ugandan. They have two children (and at the time were also fostering
two other children). They had “manufactured a history” of Ms Taiwo’s previous
employment with Mr Olaigbe’s parents so that she would qualify for a domestic
worker’s visa. They had also “fabricated” a contract of employment, which Ms
Taiwo never saw, and which provided for more favourable terms of employment
than Ms Taiwo had understood. On arrival in the United Kingdom, Mr Olaigbe took
her passport and kept it.
4. The employment tribunal found that Ms Taiwo was expected to be “on duty”,
during most of her waking hours and was not given the rest periods required by the
Working Time Regulations 1998 (SI 1998/1883). She was not paid the minimum
wage to which she was entitled under the National Minimum Wage Act 1998. For
April, May and June 2010, she was paid the sum of £200 per month which she had
been promised, and there was a further payment of £300 in August. But in October
she was forced to hand over £800 to the employers. She was not given enough to eat
and suffered a dramatic loss of weight. She was subjected to both physical and
mental abuse by Mr and Mrs Olaigbe and Mr Olaigbe’s mother, who was living with
them for some of the time. She was slapped and spat at; she was mocked for her
tribal scars and her poverty, and called a “crazy woman”. She was not allowed her
own personal space and shared a room with the employers’ two children. The
Employment Appeal Tribunal characterised her situation as “systematic and callous
exploitation”.
5. Eventually, through a sympathetic worker at the children’s playgroup, she
was put in touch with social services and other agencies. These enabled her to escape
in January 2011 and supported her thereafter. In April 2011 she brought a claim in
the employment tribunal. In January 2012, the tribunal upheld her claims under the
National Minimum Wage Act 1998, for unlawful deduction from wages under
section 13 of the Employment Rights Act 1996, for failure to provide the rest periods
required by the Working Time Regulations 1998 and for failure to provide written
terms of employment under section 1 of the 1996 Act. In February she was awarded
£30,458.85 under the National Minimum Wage Regulations, £1,520 for failure to
provide written particulars of her contract of employment, and £1,250 for failing to
provide rest periods.
6. However, the employment tribunal dismissed her claims of direct and indirect
race discrimination under the Equality Act 2010 (in fact some of her employment
was covered by the Race Relations Act 1976, as the relevant provisions of the
Equality Act 2010 only came into force on 1 October 2010, but it makes no material
difference). The tribunal found that Ms Taiwo was treated as she was because “she
was a vulnerable migrant worker who was reliant on the respondents for her
continued employment and residence in the United Kingdom”. She had not been
treated as she was because she was Nigerian. Another migrant worker whose
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employment and residence in the United Kingdom was governed by immigration
control and by the employment relationship would have been treated in the same
way. Mr and Mrs Olaigbe might have chosen to employ a Ugandan and there was
no reason to think that a Ugandan would have been treated any more favourably
than Ms Taiwo had been. Hence there was no direct discrimination on grounds of
race.
7. The Employment Appeal Tribunal upheld the employment tribunal’s
conclusions on direct discrimination. They found that the tribunal had not properly
approached the claim of indirect discrimination, because it had not tried to identify
the “provision, criterion or practice” (PCP) which put the group to which the
claimant belonged at a comparative disadvantage; but no tenable PCP had been put
forward. Hence the appeal on discrimination was dismissed.
Ms Onu’s case
8. The facts of Ms Onu’s case are similar. She too is Nigerian. She entered the
United Kingdom in July 2008 on a domestic worker’s visa obtained for her by her
employers, Mr and Mrs Akwiwu. She had previously worked for them in Nigeria,
but they too had supplied false information to the United Kingdom authorities in
order to obtain the visa. Mrs Akwiwu’s mother later drafted a contract for her in
Nigeria which provided that she would neither leave nor abscond from them within
a year and that if she did she would be reported to the UK police and immigration
authorities. They had taken away her passport on arrival and did not tell her where
it was kept. She was not provided with a written statement of her terms and
conditions of employment. She was required to work, on average, for 84 hours a
week, looking after the home and the couple’s two children, one of whom was a
prematurely born baby who required special care. She was not given the required
rest periods or annual leave. She was not paid the minimum wage. She was
threatened and abused by her employers. She was told that she would be arrested
and imprisoned if she tried to run away. She was also told that the police in the
United Kingdom were not like the Nigerian police, by which was meant that she
would be arrested and put in prison for minor matters. She was not registered with
a general practitioner.
9. Ms Onu fled her employers’ home in June 2010, walking some eight miles
to the home of a Jehovah’s Witness whom she had met on the doorstep of the home
because she had no money. She was put in touch with a charity which assists
trafficked migrant workers. In September 2010 she brought proceedings making the
same claims that Ms Taiwo made, to which she later added claims for harassment
and victimisation under the Equality Act 2010. The employment tribunal upheld the
same claims as had the tribunal in Ms Taiwo’s case and also held that Ms Onu had
been constructively and unfairly dismissed. They further held that her employers
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had directly discriminated against her and had harassed her on grounds of race. They
found that the employers had treated her less favourably than they would have
treated someone who was not a migrant worker. They had treated her in the way that
they did because of her status as a migrant worker which was “clearly linked” to her
race. At the later remedy hearing, she was awarded £11,166.16 for unfair dismissal,
including the failure to provide a statement of terms and condition; £43,541.06 for
unpaid wages; £1,266.72 for unpaid holiday; and £25,000 for injury to feelings and
£5,000 aggravated damages.
10. The Employment Appeal Tribunal allowed the employers’ appeal in respect
of the discrimination claim. They held that no part of the employers’ treatment of
Ms Onu was inherently bound up with her race but rather with her subordinate
position and the relative economic benefits of her work in the United Kingdom
compared with the poverty of her situation in Nigeria. They also rejected a claim for
indirect discrimination based on a PCP of “the mistreatment of migrant domestic
workers”, because it was not a neutral criterion which disadvantaged some of those
to whom it applied disproportionately when compared with others to whom it
applied.
The Court of Appeal
11. The Court of Appeal heard the appeals of Ms Taiwo and Ms Onu on the
discrimination issues together: [2014] EWCA Civ 279; [2014] 1 WLR 3636; [2014]
ICR 571. On the direct discrimination claim, there were two issues: the “grounds”
issue and the “nationality issue”. On the grounds issue, the court held that this was
not a case in which the employers had published or applied a discriminatory criterion
(an example would be that women required higher qualifications for employment
than did men). It was therefore necessary to examine the employers’ mental
processes to discover whether the employees’ immigration status formed part of the
reasons for treating them so badly. It did not have to be the sole reason as long as it
played a significant part. In this case it did so. That holding is not under appeal. On
the nationality issue, the court held that immigration status was not to be equated
with “nationality” for the purpose of the Race Relations and Equality Acts. There
were many non-British nationals working in the United Kingdom who did not share
the particular dependence and vulnerability of these migrant domestic workers. On
the indirect discrimination claim, the court found that the mistreatment of migrant
workers was not a PCP. This factual situation had nothing to do with the kind of
mischief which indirect discrimination is intended to address.
12. Ms Taiwo has permission to appeal to this court on the nationality issue. Ms
Onu’s case has been heard with hers as an application for permission to appeal with
appeal to follow if permission is granted. In view of the importance of the issue,
permission to appeal is granted. The court is particularly grateful to counsel for
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appearing for Mr and Mrs Akwiwu at very short notice, following the tragic and
untimely death of Mr Jake Dutton who had represented them in the Employment
Appeal Tribunal and the Court of Appeal. We are also grateful to counsel and their
instructing solicitors for appearing pro bono for both Mr and Mrs Olaigbe and Mr
and Mrs Akwiwu. Given that the Anti Trafficking and Labour Exploitation Unit is,
quite properly, supporting the claims of Ms Taiwo and Ms Onu, it was particularly
important that the contrary arguments were also fully presented to the court.
Direct discrimination
13. Section 13(1) of the Equality Act 2010 provides that “A person (A)
discriminates against another (B) if, because of a protected characteristic, A treats B
less favourably than A treats or would treat others”. By section 4 of the Act, race is
a protected characteristic. By section 9(1) race “includes (a) colour, (b) nationality,
and (c) ethnic or national origins”. By section 39(2), “An employer (A) must not
discriminate against an employee of A’s (B) (a) as to B’s terms of employment, (b)
in the way A affords B access, or by not affording access, to opportunities for
promotion, transfer or training or for receiving any other benefit, facility or service,
(c) by dismissing B, (d) by subjecting B to any other detriment.” The previous
provisions of the Race Relations Act 1976 were to the same effect.
14. There can be no doubt that the conduct of these employers would amount to
unlawful direct discrimination if it was “on racial grounds” (under the 1976 Act) or
“because of” race (under the 2010 Act), which includes nationality. These
employees were treated disgracefully, in a way which employees who did not share
their vulnerable immigration status would not have been treated. As the employment
tribunals found, this was because of the vulnerability associated with their
immigration status. The issue for us is a simple one: does discrimination on grounds
of immigration status amount to discrimination on grounds of nationality under the
1976 and 2010 Acts? On the face of it, the two are different. What basis is there for
saying that they are the same?
15. Mr Robin Allen QC, who has said all that could possibly be said on behalf of
the appellants, makes two basic points. First, he argues that immigration status is a
function of nationality. It is indissociable from it. British nationals have a right of
abode here which cannot be denied. All non-British nationals are potentially subject
to immigration control. They require leave to enter and leave to remain. These can
be granted for limited periods and on limited terms. Even those granted indefinite
leave to remain may have that status withdrawn.
16. Secondly, he points to the flexible approach which has been adopted to the
concept of nationality in other contexts. Thus, article 14 of the European Convention
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on Human Rights forbids discrimination in the enjoyment of the convention rights
on “any ground such as … national or social origin … or other status”. In R (Morris)
v Westminster City Council [2005] 1 WLR 865, it was held incompatible with article
14 of the European Convention on Human Rights, read with article 8, to deny a
priority need for accommodation on the ground that a non-British child was subject
to immigration control while her British mother was not.
17. By section 28 of the Crime and Disorder Act 1998, an offence is racially
aggravated if the offender shows at the time, or is motivated by, hostility towards
members of a racial group to which the victim belongs or is assumed to belong. By
section 28(4) a racial group means “a group of persons defined by reference to race,
colour, nationality (including citizenship) or ethnic or national origins”. In AttorneyGeneral’s Reference (No 4 of 2004) [2005] EWCA Crim 889; [2005] 1 WLR 2810,
calling a doctor an “immigrant doctor” was enough to establish that an assault was
racially motivated: the epithets “Indian” and “immigrant” were both “clearly
referable to his nationality and national origins”. In R v Rogers [2007] 2 AC 62, it
was held that calling people “bloody foreigners”, although without reference to a
specific nationality, amounted to racially aggravated abuse.
18. Mr Allen also points out that the United Kingdom Border and Immigration
Agency’s Code of Practice, Prevention of Illegal Working, Guidance for Employers
on the Avoidance of Unlawful Discrimination in employment practices while seeking
to prevent unlawful working (2008), gives as an example of direct discrimination on
racial grounds, giving an employee with limited leave to remain more degrading
forms of work in comparison with employees with unlimited leave (para 3.2).
19. None of these examples is very helpful in deciding the issue which we have
to decide. Article 14 of the ECHR contains an open-ended list of characteristics
which may result in unjustified discrimination in the enjoyment of the rights
protected by the Convention, ending in “other status”. Foreign residence has been
held to be a status for this purpose, so it is quite clear that immigration status also
qualifies. There was no need to distinguish between this and nationality in the
Morris case and so the fact that it was regarded as nationality discrimination is
neither here nor there. The courts were not required to address their minds to the
difference, if any, between the two, as we are here.
20. Similarly, when deciding whether an offence is racially aggravated for the
purpose of the 1998 Act, the distinction is unlikely to be relevant. “Bloody
foreigners” is in any event a reference to nationality. Attorney General’s Reference
(No 4 of 2004) is closer to this case, but it is easy to justify a liberal approach to a
statute which recognises that some forms of criminal behaviour are more hurtful to
the victim and more damaging to society than others. The courts had recognised this
in their sentencing policies before the 1998 Act was enacted.
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21. The Equality Act 2010, and its predecessors, are very different. Generally
speaking, the suppliers of employment, accommodation, goods and services are
allowed to choose with whom they will do business. There is freedom to contract,
or to refuse to contract, with whomever one pleases. The 2010 Act limits that
freedom of contract (and also the freedom of suppliers of public services). It does
so in order to protect specified groups who have historically been discriminated
against by those suppliers, shut out of access to the employment, accommodation,
goods and services they supply, for irrelevant reasons which they can do nothing
about. In that context, the dividing line between which characteristics are protected
and which are not protected is crucial.
22. Parliament could have chosen to include immigration status in the list of
protected characteristics, but it did not do so. There may or may not be good reasons
for this – certainly, Parliament would have had to provide specific defences to such
claims, to cater for the fact that many people coming here with limited leave to
remain, or entering or remaining here without any such leave at all, are not allowed
to work and may be denied access to certain public services. So the only question is
whether immigration status is so closely associated with nationality that they are
indissociable for this purpose.
23. Mr Allen is entirely correct to say that immigration status is a “function” of
nationality. British nationals automatically have the right of abode here. Non-British
nationals (apart from Irish citizens) are subject to immigration control. But there is
a wide variety of immigration statuses. Some non-nationals enter illegally and have
no status at all. Some are given temporary admission which does not even count as
leave to enter. Some are initially given limited leave to enter but remain here without
leave after that has expired. Some continue for several years with only limited leave
to enter or remain. Some are allowed to work and some are not. Some are given
indefinite leave to remain which brings with it most of the features associated with
citizenship.
24. In these cases, Ms Taiwo and Ms Onu had limited leave to enter on domestic
workers’ visas. It was the terms of those visas which made them particularly
vulnerable to the mistreatment which they suffered. At the relevant time, such visas
were granted to workers who had already been working abroad for the employer, or
the employer’s family, for at least a year; typically they would be granted for a year,
though renewable; and the employee would have to seek the approval of the
immigration authorities for any change of employer while here. In practice,
therefore, such workers were usually dependent upon their current employers for
their continued right to live and work in this country.
25. The Independent Review of the Overseas Domestic Workers Visa (2015),
commissioned by the Home Office, identified ten reasons for these workers’
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particular vulnerability: their motivation and mentality is one of desperation, born
of their inability to find work or earn enough to support their families in their home
country (sometimes having left that country to work elsewhere before being brought
to this country); they are without the safety net of friends and family and other
support networks; they are often unfamiliar with the culture and language, which
represents a significant barrier to wider social interaction; they often work long
hours; they often do not know their legal rights; they mainly work in private homes,
which are less easy to regulate; their work is often part of an informal economy, paid
in cash and not declared to the tax authorities; their permission to be here depends
upon their employers’ want or need of them; they have no recourse to public funds;
and those employed by diplomats may have to combat claims of diplomatic
immunity. Those, like the claimant in Hounga v Allen [2014] 1 WLR 2889, who
have come here as visitors without permission to work and stayed here illegally, are
even more vulnerable.
26. Clearly, however, there are many non-British nationals living and working
here who do not share this vulnerability. No doubt, if these employers had employed
British nationals to work for them in their homes, they would not have treated them
so badly. They would probably not have been given the opportunity to do so. But
equally, if they had employed non-British nationals who had the right to live and
work here, they would not have treated them so badly. The reason why these
employees were treated so badly was their particular vulnerability arising, at least in
part, from their particular immigration status. As Mr Rahman pointed out, on behalf
of Mr and Mrs Akwiwu, it had nothing to do with the fact that they were Nigerians.
The employers too were non-nationals, but they were not vulnerable in the same
way.
27. That, in my view, is enough to dispose of the direct discrimination claim. But
it is consistent with the approach of this court in the cases of Patmalniece v Secretary
of State for Work and Pensions [2011] 1 WLR 783, which in turn applied the
approach of the European Court of Justice in the cases of Schnorbus v Land Hessen
(Case C-79/99) [2000] ECR I-10997 and Bressol v Gouvernement de la
Communauté Française (Case C-73/08) [2010] 3 CMLR 559, and Preddy v Bull
[2013] 1 WLR 3741. These were cases, not about whether a particular characteristic
fell within the definition of a protected characteristic in the 2010 Act, but about
whether the conduct complained of amounted to direct or indirect discrimination.
There was no doubt that it was one or the other.
28. Patmalniece was about whether a residence requirement, which all British
nationals, but not all non-British nationals, could meet was directly discriminatory
on grounds of nationality. In Schnorbus, Advocate General Jacobs had said this
(para 33):
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“The discrimination is direct where the difference in treatment
is based on a criterion which is either explicitly that of sex of
necessarily linked to a characteristic indissociable from sex. It
is indirect where some other criterion is applied but a
substantially higher proportion of one sex than of the other is
in fact affected.”
This concept of indissociability was taken up by Advocate General Sharpston in
Bressol, where the facts were very similar to those in Patmalniece, and formulated
thus (at para 56):
“I take there to be direct discrimination when the category of
those receiving a certain advantage and the category of those
suffering a correlative disadvantage coincide exactly with the
respective categories of persons distinguished only by applying
a prohibited classification.”
In all three cases, the discrimination was held to be indirect rather than direct (the
Court of Justice disagreeing with the Advocate General in Bressol). There was not
an exact correspondence between the advantaged and disadvantaged groups and the
protected characteristic, as some of those distinguished by their nationality were not
disadvantaged, although others were.
29. The same approach was adopted in Preddy v Bull, where Christian hotel
keepers would deny a double bedded room to all unmarried couples, whether of
opposite sexes or the same sex. That would undoubtedly have been indirect
discrimination, as same sex couples were not then able to marry and thus fulfil the
criterion, whereas opposite sex couples could do so if they chose. But the majority
held that it was direct discrimination, because the hotel keepers expressly
discriminated between heterosexual and non-heterosexual married couples. The
couple in question were in a civil partnership, which for all legal purposes is the
same as marriage.
30. Mr Allen argues that these cases can be distinguished, because they were
cases in which an express criterion was being applied, be it nationality or
heterosexuality, whereas these appeals are not concerned with such a criterion or
test, but with the mental processes of the employers. But that makes no difference.
In “mental processes” cases, it is still necessary to determine what criterion was in
fact being adopted by the alleged discriminator – whether sex, race, ethnicity or
whatever – and it has to be one which falls within the prohibited characteristics. The
point about this case is that the criterion in fact being adopted by these employers
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was not nationality but, as Mr Allen freely acknowledges, being “a particular kind
of migrant worker, her particular status making her vulnerable to abuse”.
Indirect discrimination
31. Mr Allen accepts that this is not a case of indirect discrimination. It is direct
discrimination or nothing. In my view he is wise to do so, but the fact that these
cases cannot be fitted into the concept of indirect discrimination is further support
for the view that the mistreatment here was not because of the employees’ race but
for other reasons. Indirect discrimination is defined in section 19 of the 2010 Act
thus:
“(1) A person (A) discriminates against another (B) if A
applies to B a provision, criterion or practice which is
discriminatory in relation to a relevant protected characteristic
of B’s.
(2) For the purposes of subsection (1), a provision, criterion
or practice is discriminatory in relation to a relevant protected
characteristic of B’s if –
(a) A applies, or would apply, it to persons with
whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B
shares the characteristic at a particular disadvantage
when compared with persons with whom B does not
share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of
achieving a legitimate aim.”
32. The concept in the 1976 Act was differently worded, but the basic principle
is the same. An employer or supplier has a rule or practice which he applies to all
employees or customers, actual or would-be, but which favours one group over
another and cannot objectively be justified. Requiring all employees to sport a
moustache is obviously indirectly discriminatory against women. The problem in
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this case is that no-one can think of a “provision, criterion or practice” which these
employers would have applied to all their employees, whether or not they had the
particular immigration status of these employees. The only PCP which anyone can
think of is the mistreatment and exploitation of workers who are vulnerable because
of their immigration status. By definition, this would not be applied to workers who
are not so vulnerable. Applying it to these workers cannot therefore be indirect
discrimination within the meaning of section 19 of the 2010 Act.
33. In disclaiming any reliance on indirect discrimination in these cases, Mr
Allen urges the court not to rule out the possibility that, in other cases involving the
exploitation of migrant workers, it may be possible to discern a PCP which has an
indirectly discriminatory effect. I am happy to accept that: in this context “never say
never” is wise advice.
Conclusion
34. It follows that these appeals must fail. This is not because these appellants do
not deserve a remedy for all the grievous harms they have suffered. It is because the
present law, although it can redress some of those harms, cannot redress them all.
Parliament may well wish to address its mind to whether the remedy provided by
section 8 of the Modern Slavery Act 2015 is too restrictive in its scope and whether
an employment tribunal should have jurisdiction to grant some recompense for the
ill-treatment meted out to workers such as these, along with the other remedies
which it does have power to grant.
