Onu v Akwiwu and another

JurisdictionEngland & Wales
JudgeLord Justice Underhill,Lord Justice Ryder,Lord Justice Maurice Kay
Judgment Date13 March 2014
Neutral Citation[2014] EWCA Civ 279
CourtCourt of Appeal (Civil Division)
Docket NumberCase Nos: A2/2013/1353 A2/2013/1415
Date13 March 2014

[2014] EWCA Civ 279

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

MR JUSTICE LANGSTAFF and members

UKEAT 0254 0285 12

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Maurice Kay

(Vice President of the Court of Appeal, Civil Division)

Lord Justice Ryder

and

Lord Justice Underhill

Case Nos: A2/2013/1353

A2/2013/1354

A2/2013/1415

Between:
Onu
Appellant
and
Akwiwu & Anr
Respondents
Between:
Taiwo
Appellant
and
Olaigbe & Anr
Respondents

James Robottom (instructed by the Anti-Trafficking and Labour Exploitation Unit, Islington Law Centre)) for the Appellant in Onu

Jake Dutton of Waldegraves for the Respondents in Onu

Robin Allen QC and Christopher Milsom (instructed by the Anti-Trafficking and Labour Exploitation Unit, Islington Law Centre) for the Appellant in Taiwo

Mr Olaigbe in person for the Respondents in Taiwo

Hearing dates: 5–7 November 2013

Lord Justice Underhill

INTRODUCTION

1

We are concerned with two appeals arising out of broadly similar situations. In both cases the Claimant is a Nigerian woman who came to this country on a migrant domestic worker visa, to work as a domestic servant for a couple living here. Ms Onu was employed by Mr and Mrs Akwiwu (Mr Akwiwu being Nigerian and Mrs Akwiwu Ugandan) and Mrs Taiwo by Mr and Mrs Olaigbe (who were both Nigerian). Both were very badly treated by their employers. In addition to being denied a number of specific employment rights they were subjected to abuse and exploitation of various kinds.

2

With the assistance of the North Kensington Law Centre, and latterly its offshoot, the Anti Trafficking and Labour Exploitation Unit ("ATLEU"), who have supported a number of other such claims, both Claimants brought (separate) proceedings in the Employment Tribunal for racial discrimination, failure to pay the national minimum wage ("the NMW"), breach of the Working Time Regulations 1998 and failure to provide written particulars of employment. Ms Onu also brought claims for unfair dismissal, racial harassment and victimisation.

3

Ms Onu's claim was heard by an Employment Tribunal in Watford chaired by Employment Judge Ryan. Mrs Taiwo's claim was heard by a Tribunal at London South, chaired by Employment Judge Martin. In both cases all the claims were upheld save for, in Ms Onu's case, her claim for victimisation and, in Mrs Taiwo's, her claim for racial discrimination, both of which were dismissed. The total award to Ms Onu was £89,683.38, which incorporated an award of £25,000 for injury to feelings, together with £5,000 by way of "aggravated damages". The award to Mrs Taiwo was £33,228.85.

4

Ms Onu appealed against the dismissal of her victimisation claim. Mr and Mrs Akwiwu cross-appealed against the findings of liability on the discrimination and harassment and NMW claims. Mrs Taiwo appealed against the dismissal of her discrimination claim. The appeals were heard back-to-back in the Employment Appeal Tribunal, the President, Langstaff J, presiding, though separate decisions were given: see [2013] ICR 770 and [2013] ICR 1039.

5

The appeals on the discrimination and victimisation claims gave rise to two important points of principle about the application of the relevant statutory provisions in cases of the present kind:

(1) The immigration status point. In neither case was the Claimant treated in the way that she was because she was Nigerian or because she was black. But in both cases the ET found that the mistreatment occurred because she was (as it was put in Taiwo) "a vulnerable migrant worker … who was reliant on the [employers] for her continued employment and residence in the UK". The question is whether discrimination against an employee because he or she is a vulnerable migrant worker constitutes either direct or indirect racial discrimination. The ET in Onu held that it constitutes direct discrimination, but in Taiwo it was held that it does not constitute either form of discrimination.

(2) The post-employment victimisation point. In Ms Onu's case the act of victimisation complained of occurred after the termination of her employment. In the EAT the employers argued that the 2010 Act does not proscribe post-employment victimisation. That point was not taken in the ET, where the victimisation claim was dismissed on the facts.

6

As for the immigration status point, the EAT held that the mistreatment of the Claimants because of their vulnerability as migrant workers did not constitute direct racial discrimination. That meant that the decision in Mrs Taiwo's case was upheld and that the finding of racial discrimination in Ms Onu's case, together with the finding of racial harassment which raised the same issue, was reversed. In both cases the EAT considered but dismissed the claim for indirect discrimination.

7

As for the post-employment victimisation point, the EAT held that post-employment victimisation was indeed proscribed by the 2010 Act. In reaching that decision it declined to follow its earlier decision in Rowstock Ltd. v Jessemey [2013] ICR 807. It also overturned the decision of the ET on the facts, holding that on the primary facts found it had been obliged to make a finding of victimisation, and it remitted the claim to the ET for a decision on remedy.

8

Mr and Mrs Akwiwu's appeal on the NMW claim was dismissed.

9

The EAT gave permission to appeal in both cases in relation to the two issues of principle which I have identified. Mrs Taiwo and Ms Onu have duly appealed on the immigration status point, and Mr and Mrs Akwiwu have appealed on the post-employment victimisation point. Although Mr and Mrs Akwiwu's Notice of Appeal purports also to appeal against the NMW decision, the EAT did not grant permission in that regard, and their solicitors have in a letter dated 22.10.13 confirmed that no such appeal is being pursued.

10

The appeals were argued before us together with an appeal in Rowstock v Jessemey, to which I have referred above. In our decision in that case handed down on 26 February 2014 we held, having considered the submissions also of counsel in Onu, that the 2010 Act does prohibit post-employment victimisation. Accordingly that point is no longer live in Onu. That does not, however, mean that Mr and Mrs Akwiwu's appeal on the victimisation claim must be dismissed, since there remains the question whether the EAT was right to overturn the ET's decision on the facts.

11

The issues that we now have to decide are thus as follows:

(A) We must decide the immigration status point in both cases.

(B) We must decide in Ms Onu's case whether the ET was entitled to dismiss the victimisation claim on the facts.

12

Ms Onu has been represented before us by Mr James Robottom of counsel, who represented her in the ET and the EAT. Mr and Mrs Akwiwu have been represented by Mr Jake Dutton of Waldegraves Solicitors, who also appeared in the EAT but not in the ET. Mr Robin Allen QC, leading Mr Christopher Milsom, has appeared for Mrs Taiwo: Mr Milsom appeared in the ET and the EAT. Mr and Mrs Olaigbe were represented by a consultant in the ET, though in the EAT they did not appear; before us Mr Olaigbe appeared in person and on behalf of his wife. Both Mr Robottom and Mr Allen and Mr Milsom were instructed by ATLEU, through the Islington Law Centre. I should like to thank whoever was responsible for the very well-presented bundles of documents and of authorities.

(A) THE IMMIGRATION STATUS POINT

THE FACTS

13

I need only summarise very briefly the mistreatment alleged by the Claimants. I take the two cases in turn.

14

Ms Onu. Ms Onu began to work for Mr and Mrs Akwiwu in Nigeria in 2007. When they came to the UK in 2008 they applied for a domestic worker visa for her. She worked for them in London (though returning with them to Lagos for some visits) until June 2010. The findings of the ET about her treatment, and the circumstances of her leaving, are helpfully summarised by the EAT at paras. 7–9 of its judgment as follows:

"… She had responsibility (though not the sole responsibility) for the Akwiwus' older daughter, and was required to cook, clean, launder and iron. She had substantial responsibility for the home. On occasion she had to stay with the younger daughter in hospital. The Respondents took away her passport into their custody. She was paid just £50 per month during the first year of her employment in the UK, and £100 per month (in the UK) and N15,000 (in Nigeria) from 2009, rising to £150 and N35,000 from January 2010. She did not eat with the Respondents socially, though took meals with the children. She did not have appropriate and separate accommodation: at best she shared a room with the younger daughter in her cot. She was not registered with a GP. Generally, she was subject to threats and abuse from the Respondents, though not to such a level as to deter her from returning from Nigeria to the UK on the 4 or 5 occasions on which she did so during the two years of her employment"

I should add to that summary that the Tribunal found that Mrs Akwiwu's mother, who was a lawyer, drafted a contract which Ms Onu signed which contained express terms (a) that if she "absconded" within a year of starting work Mr and Mrs Akwiwu would report her to the police and the immigration authorities; and (b) that they would retain her passport until the termination of her employment, as they in fact did. Ms Onu was told on several occasions during her employment that if she tried to run away she would be arrested and sent to prison, and Mrs Akwiwu called her to watch news stories on the television about immigration issues.

15

Mrs Taiwo. Mrs Taiwo was...

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