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Immigration status did not come within the race/nationality protected characteristic for the purposes of the Equality Act 2010

Taiwo v Olaigbe & Anor and another case [2016] UKSC 31

Related Member(s):
Sarah Hannett, Thomas Linden QC
Related Practice Area(s):
Discrimination and Equality, Immigration, Asylum and Free Movement, Employment Law

The Supreme Court has unanimously dismissed the appellants’ appeals in cases considering whether the mistreatment of persons because of their position as vulnerable migrant domestic workers, dependent on their employers for their continued employment and residence in the UK constituted race/nationality discrimination, contrary to the Equality Act 2010.

The appellant in the first appeal was a Nigerian national who came to the UK on a migrant domestic worker visa. The respondents were her employers. The appellant was seriously mistreated by the respondents, and successfully brought claims in the employment tribunal for failure to pay the national minimum wage, for unlawful deductions from wages, for failure to provide rest periods and for a failure to give her written terms of employment. However, her claim for racial discrimination was unsuccessful.

The appellant in the second appeal suffered similar experiences and was also a Nigerian worker in the UK on a domestic worker’s visa. She successfully brought similar claims in the employment tribunal, but the Employment Appeal Tribunal overturned the employment tribunal’s finding that there had been direct race discrimination.

Lady Hale gave the only substantive judgment.

The Supreme Court held that neither appellant had suffered race/nationality discrimination, because they suffered abuse as a result of their precarious immigration status, rather than their nationality. Race was a protected characteristic under the Equality Act 2010, s 13(1), and this included colour, nationality and ethnic origin. Nationality and immigration status could not be equated given that non British nationals may have a secure immigration status here and therefore not be vulnerable in the way that the appellants were. Parliament could have opted to include immigration status in the list of protected characteristics but did not do so. The treatment of the appellants was attributable to the nature of their visa, which made them dependent on their employers for continued residence, rather than their nationality.

The Supreme Court also found that there was no indirect discrimination.

Thomas Linden QC and Sarah Hannett were involved in this case.