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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Taiwo & Anor v Olaigbe & Ors [2016] UKSC 31 (22 June 2016) URL: https://www.bailii.org/uk/cases/UKSC/2016/31.html Cite as: [2016] ICR 756, [2016] UKSC 31, [2016] 1 WLR 2653, [2016] IRLR 719, [2016] WLR(D) 319, [2016] WLR 2653 |
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[2016] UKSC 31
On appeal from: [2014] EWCA Civ 279
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
( ![]() Robin Allen QC Christopher Milsom (Instructed by Anti Trafficking and Labour Exploitation) |
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Respondent (Olaigbe) Thomas Linden QC Sarah Hannett (Instructed by Lewis Silkin LLP (Oxford)) |
|
|
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Appellant (Onu) Robin Allen QC James Robottom (Instructed by Anti Trafficking and Labour Exploitation) |
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Respondent (Akwiwu) Sami Rahman David Mold (Instructed by BH Solicitors) |
LADY HALE: (with whom Lord Wilson, Lord Reed, Lord Hughes and Lord Toulson agree)
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 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”.
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 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.
Ms Onu’s case
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 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.
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 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
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 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 Attorney-General’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.
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’ 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.
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.
“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.
Indirect discrimination
“(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.”
Conclusion