From Vulnerability to Discrimination, From Nationality to Immigration

Amir Paz-Fuchs
Amir Paz-Fuchs

As the results of the European referendum sink in, I couldn’t find the energy to focus on the day to day, so decided to write a blog post on a recent Supreme Court case. And wouldn’t you know it, it involves immigration. It seems that you can run, but you cannot hide.

The case is actually a combination of two: Taiwo v Olaigbe and Onu v Akwiwu, involving two Nigerian women who worked as domestic workers for wealthy and influential Nigerian employers in the UK. Though separate, their stories are similar: in both cases the claimants entered the UK legally on a domestic worker’s visa to care for the employer’s children and household; their passports were immediately taken by the employers; they were not given rest periods guaranteed by the Working Time Regulations 1998; were not paid minimum wage; and were routinely abused: Ms Taiwo was spat at, slapped and mocked for her poverty and tribal scars, while Ms Onu was threatened, abused and told (falsely) that she’d be imprisoned if she ran away. In both cases, the Employment Tribunals (ETs) accepted the majority of their claims. Ms Taiwo was awarded compensation under the Minimum Wage Regulation, for failure to provide written particulars, and for failure to provide rest periods. Ms Onu was awarded compensation for unfair (constructive) dismissal, unpaid wages, unpaid holidays and injury to feelings. Where the ETs differ was with regards to the claim that the claimants were discriminated on the basis of race, which includes nationality.

In Ms Taiwo’s case, the ET accepted that while the claimant was mistreated because she was a vulnerable migrant worker, that did not suffice to establish a discrimination claim, since she was not treated as she was because she was Nigerian. Any other worker with a similar immigration status would, presumably, have been treated in a similar fashion, regardless of race or nationality. In contrast, the ET found not only that Ms Onu’s abuse derived from her immigration status, but that the latter is “clearly linked” to her race, since British nationals could not, and would not, be treated in that manner, thus paving the way for a successful discrimination claim. The EAT tribunal accepted the employer’s appeal, in Ms Onu’s case, on the discrimination claim, holding that immigration status is not inherently bound up with race. The cases were joined in the Court of Appeal to decide this very question. Underhill LJ stated, at [50], that

… the ground on which the Respondents were held to have discriminated was, specifically, that the Claimants were migrant domestic workers, with the peculiar dependence on their employers that is a consequence of that status … To say that their immigration status (in that sense) is “intimately associated” with their non-British nationality – or, as the Tribunal in Onu put it, that the two are “linked” – is to say no more than that only people with non-British nationality are migrant domestic workers.  That is obviously so; but what matters is that not all non-British nationals working in the UK are migrant domestic workers or share an equivalent vulnerability.

Lady Hale, for the Supreme Court, rejected the appeal for reasons very similar to those of the Court of Appeal. But it is interesting to note where the Supreme Court agrees with the claimant. This [14] is a crucial passage:

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.

So the SC accepts that the employees (1) suffered from a vulnerability and that (2) that vulnerability was derived from their immigration status and that (3) that vulnerability was exploited in a manner that allowed them to be treated disgracefully. And yet, this was not enough, because immigration status is not included in the list of protected characteristics [22]. Arguments presented by the claimants, referring to instances in which race and nationality were understood in a generous manner, did not suffice. One such example was, to me, particularly relevant: the Home Office Border and Immigration Agency Guidance for Prevention of Illegal Working which, under the category of “Direct Discrimination” on racial grounds gives the example of “an employee with limited leave to remain in the UK is given a more degrading form of work to do in comparison with workers with unlimited leave”. As it so happens, this is the one case that Lady Hale does not address, and thus not explain why it does not support the expansion of direct race discrimination to include employees with different immigration status.

What should we make of this refusal to expand the list of protected characteristics through interpretation? Three possible approaches may be suggested. The first would posit that the ruling is completely right. Nationality and race are not immigration status. The two are not identical. And perhaps Lady Hale is right that immigration status is not the ‘mischief’ that the Race Relations Act, and the Equality Act that followed, was supposed to address. The list of ‘protected characteristics’ is a reasonable one, and some cases will simply fall outside of that list. This may be unfortunate in a particular case, but the law cannot, and should not, address all social ills. A person who falls on bad financial times may be forced to sell her house, or car, below market value, and while a buyer may ‘exploit’ (as in, take advantage of) this situation, the law does not view this as illegal ‘exploitation’.

The second approach is similar to the one adopted by the ET in Onu, that is, that we should read ‘immigration status’ into race and nationality. It stated that “the reality is that they treated the Claimant precisely in the way in which they did because of her status as a migrant worker which was clearly linked to the Claimant’s race”. But this was quickly rejected by the EAT, and perhaps rightly so, for it the immigration status isn’t, actually, linked to race, or even nationality. Leaving aside the fact that the employers themselves were Nigerian, it is easy to imagine a Nigerian with permanent leave to remain in the UK, who is thus less vulnerable to exploitation of her immigration status.

But while the analysis may be missing a logical stepping stone, the philosophical approach of the ET in Onu seems to me to be correct. It suggests (albeit not explicitly) that, to paraphrase Lady Hale’s statement, that this Ms Onu’s situation is precisely the ‘mischief’ that the Equality Act should address. Indeed, she cites in agreement the reasons underlying this vulnerability, all of which are related to immigration status, and apply in the present cases (para [25]):

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 … ;  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 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;.

A purposive approach to the equality law, in the context of employment relations, would suggest that these workers are precisely those who merit protection, for the reasons just noted. Courts have reached beyond the letter of the law, and have interpreted statutes in a very imaginative way, on numerous occasions. This, to my mind, should have been one of them.

The third approach seems to be suggested by Lady Hale, in the opening, and more explicitly, in the closing section of her speech – rolling the responsibility to the legislature, so that the law may be amended to offer this protection. Interestingly, in doing so, Lady Hale does not refer to the Equality Act, but rather to the Modern Slavery Act (MSA). In her concluding paragraph, she suggested amending section 8 of the Modern Slavery Act to allow employment tribunals to compensate workers in that situation. This may seem appropriate, if only because, when they are treated poorly, the conditions of domestic migrant workers is perhaps the closest one could find to slavery and forced labour within ‘normalised’ employment relations in Western capitalist democracies. Indeed, it is probably no coincidence that the first time that the ECtHR recognised the existence of forced labour was in Siliadin, which involved a domestic migrant worker from Togo, employed in France. In an forthcoming article (Badges of Modern Slavery, MLR (2016)) I note, following Virginia Mantouvalou, that the Modern Slavery Act as it stands does not identify (domestic) migrant workers as potentially vulnerable qua their status as migrant workers, despite the fact that it is, perhaps, the ‘natural’ grounds from which to base an argument based on vulnerability and exploitation of labour. As the Council of Europe’s Parliamentary Assembly (yes, that EU again…) noted in its Recommendation on Domestic Slavery: ‘today’s slaves are predominantly female and usually work in private households, starting out as migrant domestic workers’. For more details, and the legal implications, see this article, by Virginia Mantouvalou and Einat Albin.

And yet, while the MSA is plausible route, it would still mean that remedy will be available only to situations of Modern Slavery, i.e. the worst form of exploitation of vulnerability. An alternative would be to add immigration status to the list of protected characteristics in Equality Act 2010. In doing so, it would enable employment tribunals to reach beyond the traditional categories of sex, race, nationality, and even those who were added more recently, such as sexual orientation, sexual identity and age, which fit a liberal paradigm that gives little to no attention to social and economic background. More generally, such change would recognise that immigration status risks putting some workers in a position of critical vulnerability which is more exploited in more circumstances than we would like to acknowledge. .

Dr Amir Paz-Fuchs is Senior Lecturer at the School of Law, University of Sussex