Judicial Production of Racial Injustice in Taiwo v Olaigbe: Decolonising the Incomplete Story on Race and Contracting
| Published date | 01 August 2024 |
| DOI | http://doi.org/10.1177/09646639231205275 |
| Author | Asta Zokaityte,Will Robinson Mbioh |
| Date | 01 August 2024 |
| Subject Matter | Articles |
Judicial Production of Racial
Injustice in Taiwo v Olaigbe:
Decolonising the
Incomplete Story on Race
and Contracting
Asta Zokaityte and
Will Robinson Mbioh
University of Kent, Canterbury, UK
Abstract
In Tai wo , one of the most recent landmark cases on racial justice, the Supreme Court rejected
race discrimination claims of two domestic migrant workers, ruling that discrimination on the
basis of ‘immigration status’should not be equated to discrimination on the basis of ‘race’.
This article presents an argument for decolonising judicial decision-making, using Ta iw o as
an example to reimagine a much more favourable outcome for victims of racial injustice.
This argument is explored through three propositions for decolonial judgment: (a) challenging
racial bias in judicial reasoning and legal doctrine; (b) challenging legal frameworks as sites of
racial oppression and inequality; and (c) accounting for contextual diversity of experiences of
racialisation, avoiding essentialist arguments and categories of racial discrimination. Drawing
on these, the article retells the stories in Tai wo to challenge the dominant, traditional race
equality paradigm and expose the varied and multi-layered ways in which people are racialised
differently across historical and socio-cultural contexts and communities. It also opens the
potential for an epistemic shift away from the liberal paradigm of ‘freedom of contract’
and towards the analysis of racial contracting that is co-constituted by multi-layered and con-
text-situated structures of oppression and domination.
Keywords
Decolonial judging, race discrimination, racial contracting
Corresponding author:
Asta Zokaityte, Department of Law, University of Kent, Elliot College, Canterbury, Kent, CT2 7NZ, UK.
Email: Az49@kent.ac.uk
Article
Social & Legal Studies
2024, Vol. 33(4) 556–581
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09646639231205275
journals.sagepub.com/home/sls
It is impossible to talk about the single story without talking about power. There is a word, an
Igbo word, that I think about whenever I think about the power structures of the world, and it
is ‘nkali’.It’s a noun that loosely translates to ‘to be greater than another’. Like our economic
and political worlds, stories too are defined by the principle of nkali: how they are told, who
tells them, when they’re told, how many stories are told, are really dependent on power.
The single story creates stereotypes, and the problem with stereotypes is not that they are
untrue, but that they are incomplete. They make one story become the only story.
Chimamanda Ngozi Adichie
Introduction
Chimamanda NgoziAdichie warns against the dangers of reducing complex narratives to a
‘single story.’These incomplete stories can become the only ones we hear, a risk that
applies to legal cases as well. Taiwo is a good example of that (Taiwo v Olaigbe [2016]
UKSC 31). According to the Supreme Court, the case of Taiwo is fairly clear: Nigerian
employers in the UK exploited fellow Nigerians (Taiwo and Onu) for domestic work,
preying on their immigration status to control and mistreat them. Accordingly, the motiv-
ation for the employers to bring the Nigerian domesticworkers to the UK was rooted in the
ability to exploit their precarious immigration status. By recruiting fellow Nigerians under
specific visasthat tied their legal residenceto their employment, the employerswere able to
exert significant control over the workers. This control enabled them to impose harsh
working conditions, low pay, and long working hours, knowing that the workers’vulner-
ability and dependence on their employment for legal residencewould make them unlikely
to challenge their mistreatment. At the most basic level, according to the Court, the abuse
suffered bythe Nigerian domestic workersin the UK can be attributed to theirvulnerability,
which was exacerbated by their precarious immigration status. Everyone involved was
Black and Nigerian,
1
and in one of the cases, the claimant and their employer belonged
to the same ethnic group in Nigeria. Therefore, according to the Court, race,and by exten-
sion the Equality Act, were not relevant factors in explaining the mistreatment or abuse.
Since the judgment was made, this single story has largely held firm. While some aca-
demic commentary has criticised the court for not adopting an intersectional approach to
consider how precarity, race, and gender contribute to immigration vulnerability, the fun-
damental idea that racism played no role in the mistreatment, abuse, or initial recruitment
has remained unchallenged. This is significant because there is an important distinction
between these two claims in the depth and nature of the critique they offer against the
Court’s judgement. When scholars argue for an intersectional approach that considers
race, gender and precarity as contributing factors to the vulnerability of the workers,
they are essentially adding layers of complexity to the Court’s‘single story’of immigra-
tion status. This approach suggests that while immigration status is important, it is not the
only factor that makes these workers vulnerable to exploitation. Race, gender, and other
social categories intersect with immigration status to create a more complex picture of
vulnerability. However, this approach does not fundamentally challenge the Court’s
basic narrative that the exploitation was primarily, if not solely, due to the workers’immi-
gration status.
Zokaityte and Mbioh 557
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
