We report on recent judgments of the Supreme Court in which they have held that domestic workers who were seriously abused because of their immigration status were not discriminated against on the grounds of race or nationality.

Background

Ms Onu and Ms Taiwo, both Nigerian migrant domestic workers, were employed in the UK without up to date papers giving them the right to work.

They were both subjected to serious abuse, including verbal and physical abuse, non-payment of national minimum wage, inadequate living conditions, denial of rest breaks and imposition of onerous working hours.

Both claimants brought claims of direct and indirect race discrimination against their employers, which were finally heard in the Supreme Court.

Direct discrimination: this occurs where, because of race (including nationality) an employer treats an employee less favourably than it would treat others. In these cases, neither claimant could show that the treatment they received was because they were Nigerian. They could only show that the treatment was due to their immigration status. The main influence exerted over them was that they were told that they may be reported to the police and go to prison. The Supreme Court found that immigration status is not a protected characteristic under the Equality Act 2010, and that parliament could well have chosen to include this on the list of protected characteristics, but had not done so. Counsel for the Claimant referred to a flexible interpretation in the past, where, for instance, calling a doctor “an immigrant doctor” was enough to establish race discrimination, as would, for instance, calling people “bloody foreigners”. This did not affect the Supreme Court’s decision.

Indirect discrimination: to bring a claim for indirect discrimination, claimants need to show that a provision, criterion or practice (PCP) has been applied to themselves, as well as other people not showing their protected characteristic, but has had a particular disadvantage on them. The problem in this case was that no-one could think of a PCP that would have been applied across the board, irrespective of immigration status. The indirect discrimination claims therefore failed as well.

Implications

This does seem to be a particularly harsh result against the claimants. However, the Supreme Court was careful to point out that, although discrimination on immigration status was different to discrimination because of race or nationality, they are very closely linked. It may be, therefore, that in different cases discrimination will be made out.