Immigration status not nationality in discrimination employment case

Not usually our arena but was very interested in the Court of Appeal decision on appeal from the Employment Appeal Tribunal in ONU & AKWIWU and TAIWO & OLAIGBE [2014] EWCA Civ 279 which considered the immigration status of the applicant in the context of racial discrimination. The cases involved claims before the employment tribunal for failure to pay minimum wage, breaches of the working time regulations and racial discrimination. The claimants were Nigerian nationals working in the UK legally as domestic servants. Quite horrific accounts of mistreatment were explored and included abuse and exploitation.

But the point of importance in the employment law context arose out of the discrimination and victimisation arguments. What became known as the immigration status point centered on whether the mistreatment of the claimants because of their vulnerability as migrant workers, amounted to direct or indirect discrimination in terms of the Equality Act 2010.

Under S9 of the said Act, race is a protected characteristic and includes colour, nationality, ethnic or national origins. However, His Lordship , Lord Justice Underhill, did not accept the claimants’ submission that “immigration status [in the sense used in the present case] and nationality were intimately associated”. The Court  rejected the point holding that the  treatment which they had endured did not amount to discrimination under the nationality protected characteristic because they were mutually exclusive.  Disappointing more so perhaps was that the indirect discrimination claim also fell.

Mistreatment on the ground of immigration status and discrimination on the ground of a protected characteristic are not indissociably linked. Thus mistreatment of claimants because of their vulnerability as migrant workers did not constitute direct racial discrimination. And if not within the protection of direct discrimination, then regardless of best effort to apply a wide and fluid interpretation, the claim for indirect discrimination cannot be made out. There was found to be no common practice when considered against other non British nationals working as domestic servants relying on a protected characteristic.