The Supreme Court has ruled that mistreatment of two women was due to their position as vulnerable migrant domestic workers, not race/nationality discrimination.
What happened?
Ms Taiwo and Ms Onu (Nigerian nationals) came to the UK on migrant domestic workers’ visas (which allow people to come to work in the UK for the same employer as back home). When they arrived, they had their passports taken, were made to work extremely hard without rest periods and suffered physical and emotional abuse. They were not paid the minimum wage.
Both women took their employers to court. They brought claims for race discrimination under the Equality Act 2010. The Equality Act can provide claimants with compensation for pain and distress suffered. Ms Onu was initially successful but the decision was overturned on appeal. Ms Taiwo was not successful. They appealed to the Supreme Court.
What did the Supreme Court decide?
The women argued that the discrimination they suffered as migrant workers was because of their nationality as Nigerians. Race is a protected characteristic under the Equality Act, and it includes nationality. The Supreme Court had to decide whether discrimination based on immigration status was equivalent to discrimination based on race/nationality.
The Supreme Court decided it was not. Nationality and immigration status could not be equated, since other non-British nationals may have a secure immigration status and not be vulnerable in the way that these two women were. The Court concluded that the women suffered abuse as a result of their precarious immigration status, rather than their nationality.
The Court said that, if Parliament had wanted to include immigration status as one of the protected characteristics under the Equality Act, they could have done so. Nor was it a case of ‘indirect’ discrimination (explained here) as there was no ‘provision, criterion or practice’ that applied to employees which put these women at a disadvantage. This case was argued under the Equality Act 2010, not the Human Rights Act 1998 because the latter only applies to public bodies, not private employers.
Nonetheless, the Supreme Court expressed extreme sympathy for the women. The Court suggested that Parliament could consider whether Section 8 of the Modern Slavery Act 2015 (which gives courts the power to provide compensation in slavery and trafficking cases) is too restrictive, and whether it should allow the Employment Tribunal to grant a remedy.
The full judgment can be read here.
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