Taiwo v Olaigbe; Onu v Akwiwu
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Toulson,Lord Wilson,Lord Reed,Lord Hughes |
| Judgment Date | 22 June 2016 |
| Neutral Citation | [2016] UKSC 31 |
| Date | 22 June 2016 |
| Court | Supreme Court |
[2016] UKSC 31
Lady Hale, Deputy President
Lord Wilson
Lord Reed
Lord Hughes
Lord Toulson
Appellant (Taiwo)
Robin Allen QC Christopher Milsom
(Instructed by Anti Trafficking and Labour Exploitation)
Appellant (Onu)
Robin Allen QC James Robottom
(Instructed by Anti Trafficking and Labour Exploitation)
Respondent (Olaigbe)
Thomas Linden QC Sarah Hannett
(Instructed by Lewis Silkin LLP (Oxford))
Respondent (Akwiwu)
Sami Rahman David Mold
(Instructed by BH Solicitors)
Heard on 20 and 21 April 2016
(with whom Lord Wilson, Lord Reed, Lord Hughes and Lord Toulson agree)
The mistreatment of migrant domestic workers by employers who exploit their employees' vulnerable situation is clearly wrong. The law recognises this in several ways. Depending on the form which the mistreatment takes, it may well amount to a breach of the worker's contract of employment or other employment rights. It may also amount to a tort. It may even amount to the offence of slavery or servitude or forced or compulsory labour under section 1 of the Modern Slavery Act 2015 or of human trafficking under section 2 of that Act. If a person is convicted of such an offence and a confiscation order made against him, the court may also make a slavery and trafficking reparation order under section 8 of the Act, requiring him to pay compensation to the victim for any harm resulting from the offence. But such orders can only be made after a conviction and confiscation order; and remedies under the law of contract or tort do not provide compensation for the humiliation, fear and severe distress which such mistreatment can cause.
Such a remedy could be found if the employer's conduct amounts to race discrimination under the Equality Act 2010 or its predecessor the Race Relations Act 1976. This would have the added advantage that proceedings for the statutory tort of race discrimination can be brought in an employment tribunal, at the same time as proceedings for unpaid wages and other breaches of the contract of employment and for unfair dismissal. The issue in this case, therefore, is whether the conduct complained of amounts to discrimination on grounds of race. In both the 1976 and 2010 Acts, at the relevant time, the definition of race also covered nationality and ethnic or national origins. In the two cases before us, the employment tribunals both found that the reason for the employers' mistreatment of their employees was their victims' vulnerability owing to their precarious immigration status. The principal question for this court, therefore, is whether discrimination because of, or on grounds of, immigration status amounts to discrimination because of, or on grounds of, nationality. The subsidiary question is whether the employers' conduct amounted to indirect discrimination against persons who shared that nationality.
Ms Taiwo is a Nigerian national of Yoruba and Nigerian ethnicity. She is married and has two children but was living in poverty in Nigeria. She entered the United Kingdom lawfully in February 2010 with a migrant domestic worker's visa obtained for her by Mr and Mrs Olaigbe, her employers. Mr Olaigbe is also a Nigerian of Yoruba ethnicity, but comes from a wealthy and influential family. Mrs Olaigbe is a Ugandan. They have two children (and at the time were also fostering two other children). They had "manufactured a history" of Ms Taiwo's previous employment with Mr Olaigbe's parents so that she would qualify for a domestic worker's visa. They had also "fabricated" a contract of employment, which Ms Taiwo never saw, and which provided for more favourable terms of employment than Ms Taiwo had understood. On arrival in the United Kingdom, Mr Olaigbe took her passport and kept it.
The employment tribunal found that Ms Taiwo was expected to be "on duty", during most of her waking hours and was not given the rest periods required by the Working Time Regulations 1998 (SI 1998/1883). She was not paid the minimum wage to which she was entitled under the National Minimum Wage Act 1998. For April, May and June 2010, she was paid the sum of £200 per month which she had been promised, and there was a further payment of £300 in August. But in October she was forced to hand over £800 to the employers. She was not given enough to eat and suffered a dramatic loss of weight. She was subjected to both physical and mental abuse by Mr and Mrs Olaigbe and Mr Olaigbe's mother, who was living with them for some of the time. She was slapped and spat at; she was mocked for her tribal scars and her poverty, and called a "crazy woman". She was not allowed her own personal space and shared a room with the employers' two children. The Employment Appeal Tribunal characterised her situation as "systematic and callous exploitation".
Eventually, through a sympathetic worker at the children's playgroup, she was put in touch with social services and other agencies. These enabled her to escape in January 2011 and supported her thereafter. In April 2011 she brought a claim in the employment tribunal. In January 2012, the tribunal upheld her claims under the National Minimum Wage Act 1998, for unlawful deduction from wages under section 13 of the Employment Rights Act 1996, for failure to provide the rest periods required by the Working Time Regulations 1998 and for failure to provide written terms of employment under section 1 of the 1996 Act. In February she was awarded £30,458.85 under the National Minimum Wage Regulations, £1,520 for failure to provide written particulars of her contract of employment, and £1,250 for failing to provide rest periods.
However, the employment tribunal dismissed her claims of direct and indirect race discrimination under the Equality Act 2010 (in fact some of her employment was covered by the Race Relations Act 1976, as the relevant provisions of the Equality Act 2010 only came into force on 1 October 2010, but it makes no material difference). The tribunal found that Ms Taiwo was treated as she was because "she was a vulnerable migrant worker who was reliant on the respondents for her continued employment and residence in the United Kingdom". She had not been treated as she was because she was Nigerian. Another migrant worker whose employment and residence in the United Kingdom was governed by immigration control and by the employment relationship would have been treated in the same way. Mr and Mrs Olaigbe might have chosen to employ a Ugandan and there was no reason to think that a Ugandan would have been treated any more favourably than Ms Taiwo had been. Hence there was no direct discrimination on grounds of race.
The Employment Appeal Tribunal upheld the employment tribunal's conclusions on direct discrimination. They found that the tribunal had not properly approached the claim of indirect discrimination, because it had not tried to identify the "provision, criterion or practice" (PCP) which put the group to which the claimant belonged at a comparative disadvantage; but no tenable PCP had been put forward. Hence the appeal on discrimination was dismissed.
The facts of Ms Onu's case are similar. She too is Nigerian. She entered the United Kingdom in July 2008 on a domestic worker's visa obtained for her by her employers, Mr and Mrs Akwiwu. She had previously worked for them in Nigeria, but they too had supplied false information to the United Kingdom authorities in order to obtain the visa. Mrs Akwiwu's mother later drafted a contract for her in Nigeria which provided that she would neither leave nor abscond from them within a year and that if she did she would be reported to the UK police and immigration authorities. They had taken away her passport on arrival and did not tell her where it was kept. She was not provided with a written statement of her terms and conditions of employment. She was required to work, on average, for 84 hours a week, looking after the home and the couple's two children, one of whom was a prematurely born baby who required special care. She was not given the required rest periods or annual leave. She was not paid the minimum wage. She was threatened and abused by her employers. She was told that she would be arrested and imprisoned if she tried to run away. She was also told that the police in the United Kingdom were not like the Nigerian police, by which was meant that she would be arrested and put in prison for minor matters. She was not registered with a general practitioner.
Ms Onu fled her employers' home in June 2010, walking some eight miles to the home of a Jehovah's Witness whom she had met on the doorstep of the home because she had no money. She was put in touch with a charity which assists trafficked migrant workers. In September 2010 she brought proceedings making the same claims that Ms Taiwo made, to which she later added claims for harassment and victimisation under the Equality Act 2010. The employment tribunal upheld the same claims as had the tribunal in Ms Taiwo's case and also held that Ms Onu had been constructively and unfairly dismissed. They further held that her employers had directly discriminated against her and had harassed her on grounds of race. They found that the employers had treated her less favourably than they would have treated someone who was not a migrant worker. They had treated her in the way that they did because of her status as a migrant worker which was "clearly linked" to her race. At the later remedy hearing, she was awarded £11,166.16 for unfair dismissal, including the failure to provide a statement of terms and condition; £43,541.06 for unpaid wages; £1,266.72 for unpaid holiday; and £25,000 for injury...
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