A Blow for the UK Migrant Workforce

Migrant workers form an integral part of the UK economy with a reported 630,000 EU nationals and 195,000 non EU nationals applying to register to work in the UK in the year end to May 2016. Whilst the vast majority of employers treat migrant workers with respect and dignity, it is clear that there are a minority who abuse their position to mistreat vulnerable migrant workers.

The UK leads the way in protecting non-UK workers under UK legislation in several ways including protection from race discrimination under The Equality Act 2010 and from forced labour and human trafficking under the more recent Modern Slavery Act 2015 and Immigration Act 2016. A recent Supreme Court judgment has, however, caused a lot of people to take note of exactly how far we may still need to go to protect vulnerable workers.

Background

On 22nd June 2016 the Supreme Court heard an appeal from two migrant workers, Ms Taiwo and Ms Onu, who were both Nigerian and who had entered the country legally on domestic visas between 2008 and 2010. Both Ms Taiwo and Ms Onu were employed as au pairs. The facts of both cases, which were initially brought separately in Employment Tribunals in England, are similar in many respects.

In both cases the workers had their passports seized by their employer and made to work excessive hours without being paid minimum wage or provided with the proper rest breaks as required by UK law. In addition both workers were abused physically and mentally by their employers and told that they would be imprisoned by UK police should they try and leave.

Both workers eventually escaped their employers premises and sought help from social services and other agencies. As a result of this interaction, Employment Tribunal claims were issued against their employers for failure to pay minimum wage, failure to provide rest breaks, failure to provide written terms of employment and race discrimination. In addition, Ms Onu brought claims for harassment and victimisation and also for unfair dismissal.

Both claimants were successful in their cases with Ms Taiwo being awarded £33,228 and Ms Onu awarded £85,973 by separate Employment Tribunals. Both judgments however, gave conflicting outcomes in respect of the race discrimination element of the claims and this was the focus of subsequent appeals, firstly to the Employment Appeal Tribunal and ultimately to the Supreme Court.

The Law

Race means colour, nationality or ethnic or national origins.

Employment Tribunals, when faced with a claim of direct race discrimination under the Equality Act 2010, must satisfy themselves that a claimant has been discriminated against on the grounds of colour, nationality or other ethnic or national origins. To do this they need to ascertain if, because of race, a person (A) treats another person (B) less favourably than A treats or would treat others.

In the case of Ms Onu, the Tribunal had no hesitation in finding that the employer had treated her in the way they did because of her status as a migrant worker, which in turn was “clearly linked” to her race. In Ms Taiwo’s case, however, the Tribunal came to a different conclusion.  It found that Ms Taiwo was treated as she was because she was a vulnerable migrant worker who was reliant on her employer for her continued employment and residence in the United Kingdom. It found that she had not been mistreated simply because she was Nigerian and that another migrant worker would have been treated the same, irrespective of their nationality. Therefore, as the treatment suffered by Ms Taiwo was a result of her migrant status and not because of her race, a claim for direct race discrimination could not succeed.  In short, migrant status was not a protected characteristic.

The reasoning in respect of the direct race discrimination claim in Ms Taiwo’s case was subsequently applied to Ms Onu’s case at the Employment Appeal Tribunal and both cases were consequently appealed to the Court of Appeal and finally the Supreme Court. The Supreme Court agreed with the decision in Ms Taiwo’s case, namely that compensation cannot be obtained under the Equality Act 2010 for mistreatment of a migrant worker where such mistreatment would have occurred no matter a migrant’s nationality.

In its judgment the Supreme Court urged Parliament to revisit this area.  It emphasised in particular the knock on effect of obtaining compensation through the Modern Slavery Act 2015, as the present law cannot redress all of the grievous harms suffered by migrants in such circumstances. Given the recent political uncertainty in the UK it remains to be seen whether such a recommendation will be carried forward.

Finally, counsel for both workers agreed that this was not an indirect race discrimination claim.  No party or the courts could identify what the relevant ‘provision, criterion or practice’ could be in order to make out an indirect discrimination claim.  The types of PCP that did come to mind would not have been applied to non-migrants so the claims were bound to fail.

What does this mean for you or your business?

Whilst the above Supreme Court case is specific to the individual facts of each migrant’s case, we encourage all employers to treat all employees, no matter their nationality, race or migrant status, equally. Whilst it may seem on the face of it that the employers have been let off lightly owing to a loophole in the law, both employers will have spent a vast amount of money on legal representation during the course of the claims.  Negative publicity may also be a real concern for cases like this.

Employers who hire migrant workers should also take legal advice on the limitations of working visas for each worker.  Consideration should also be given to the civil penalties in force for breach of such duties which can now reach £20,000 per worker caught illegally working in the UK or working in breach of their visa restrictions. 

What do you need to be doing now?

Keep an eye on developments in the area of race discrimination law.  The Supreme Court made it clear that although their hands were tied by law, they felt unease at this decision.  It may well be the case that Parliament takes steps to amend the Equality Act 2010 to cover situations like this.  We will update you on any developments in this area.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.