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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] IRLR 719, [2016] WLR(D) 319, [2016] UKSC 31, [2016] 1 WLR 2653, [2016] WLR 2653, [2016] ICR 756 |
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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) |
|
Respondent
( ![]() Thomas Linden QC Sarah Hannett (Instructed by Lewis Silkin LLP (Oxford)) |
|
|
|
Appellant (Onu) Robin Allen QC James Robottom (Instructed by Anti Trafficking and Labour Exploitation) |
|
Respondent (Akwiwu) Sami Rahman David Mold (Instructed by BH Solicitors) |
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 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
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 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
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?
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.
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.
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.
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’
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.
“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 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 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.
Conclusion