Mistreatment of migrant domestic workers not race discrimination

Posted 20/07/2016

Now that the decision has been made to leave the EU, there is speculation on what changes will be made to the visas that enable non-UK citizens to work in the UK and to the immigration policies of the UK.Whilst the news on what may happen is largely speculative, case law has recently touched on the issue of mistreatment of an individual based on their immigration status and whether this can be classed as discrimination.

The Equality Act 2010 provides protection against discrimination based on certain characteristics which people may possess (the ‘protected characteristics’). Some protections in the Act relate to only some of the listed characteristics, whereas others give protection to all of them.Nationality comes under the protected characteristic of race, as does colour and national and ethnic origins.

In the cases of Taiwo v Olaigbe and Onu v Akwiwu it was found that mistreating workers based on their immigration status, which made them vulnerable migrants, did not amount to unlawful discrimination.This was because the treatment did not amount to discrimination on the grounds of the protected characteristic of nationality. It was found that the visa status of both Claimants was what made them vulnerable to the treatment they suffered and not their nationality.

The Court accepted that immigration status is a ‘function of nationality but said there was a wide variety of immigration statuses.In some cases workers depend on employment for their right to live and work in the UK because of restrictions on their visas.However, there are many non-British nationals working in the UK who are not migrant domestic workers and who do not have similar visa restrictions.

The decision gives little protection for vulnerable migrant workers.It however remains the position that there are protections for those who are discriminated against on the basis of race.It will therefore be important for employers to carefully consider the basis on which decisions which affect employment of non-UK citizens are made.