This is a case in the Court of Appeal (CoA) Onu v Akwiwu & Anor: Taiwo v Olaighe & Anor  EWCA Civ 279n dated 13/03/14 by the Appellants (Ms. Onu and Mrs. Taiwo) appealing against the decision of the Employment Appeal Tribunal (EAT) that they had not suffered direct discrimination at the hands of their employer because of their status as migrant domestic workers.
Brief Facts and Chronology
The Appellants were Nigerian women who entered the UK on a migrant domestic worker visas, to take up employment within separate households. Ms. Onu was employed by Mr. and Mrs. Akwiwu and Mrs Taiwo by Mr. and Mrs. Olaigbe. Both employers were the Respondents in this case.
Ms. Onu began to work for the Respondents in Nigeria in 2007 prior to arrival in the UK. She worked for them in London until June 2010
Ms. Onu had substantial responsibility for both the home and the Respondents daughters. She was required to cook, clean, launder and iron. Additionally, she was only permitted meals with the children and did not have appropriate separate accommodation of her own. She was not registered with a GP and the Respondent’s retained her passport. Ms Onu was paid £50 per month during the first year of her employment in the UK and thereafter a combination of £100 and 15,000 Naira per month in 2009 and £150 and N35,000 in 2010. Ms Onu was subject to threats and abuse from the Respondents throughout the course of her employment was told that if she tried to run away she would be arrested and sent to prison.
Mrs. Taiwo was recruited by the Respondent Mr. Olaigbe in Nigeria in 2008. On entry to the UK she lived with the Respondents and their children until 06/01/11 when she left and was put in contact with social services. Mrs Taiwo also alleged mistreatment by the Respondents. Specifically she was paid £200 per month and was “on duty” throughout her waking hours. She was forced to hand back £800 in October 2010. She was given no payslips, and no tax or NI was paid. It found that she was not given enough to eat, so that she lost a lot of weight; that the Respondents were verbally and physically abusive and that other than to take the children to playgroup she was not permitted to go out on her own. Mrs Taiwo also had her passport retained. In mid-2010 when she indicated her desire to return to Nigeria she was told by the Respondents that she would have to repay the money they had spent on her.
With the support of the North Kensington Law Centre and the Anti Trafficking and Labour Exploitation Unit (“ATLEU”) the Appellants brought (separate) proceedings in the Employment Tribunal (ET)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. The act of victimization she complained of occurred after the termination of her employment and consisted of two threatening telephone calls that Mr Akwiwu made to her sister.
Hearing in the ET
Ms Onu’s claim was heard by an ET in Watford chaired by Employment Judge Ryan. Mrs Taiwo’s claim was heard by a Tribunal at London South, chaired by Employment Judge Martin.
All the claims in both cases were upheld except for Ms Onu’s claim for victimisation and Mrs Taiwo’s claim for racial discrimination. Also in both cases the ET found that the mistreatment occurred because Appellants were vulnerable migrant workers reliant on their employers for their continued employment and residence in the UK.
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
Ms Onu appealed against the dismissal of her victimisation claim. The Respondents to her ET 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 in the Employment Appeal Tribunal (EAT), the President, Langstaff J, presiding over both cases.
Hearing in the EAT
There were two questions of law before the EAT:
Firstly, whether discrimination against an employee because he or she was a vulnerable migrant worker constituted either direct or indirect racial discrimination.
Secondly, whether the 2010 Equality Act (the 2010 Act) was applicable to post-employment victimization
The EAT held that mistreatment of the Appellants because of their vulnerability as migrant workers did not constitute direct racial discrimination and that post-employment victimisation was unlawful under by the 2010 Act.
Accordingly, Mrs Taiwo’s appeal as regards her discrimination claim was dismissed, and the appeal of the Respondents (Mr and Mrs Akwiwu) as regards Ms Onu’s claims of discrimination and harassment was allowed however their NMW claims were dismissed.
The EAT gave permission to the Appellants to appeal to the CoA on the First question of Law and gave permission to Mr and Mrs Akwiwu to appeal in respect of the Second Question of Law alone.
Hearing in the CoA
In respect of the First Question of Law, the CoA noted that grounds for a direct discrimination would vary from case to case but would require the person discriminating against another to have done so on the basis of a protected characteristic i.e. age, sex, disability, race (colour, nationality, ethnicity), religion (belief or lack thereof), sexual orientation, pregnancy (or parenthood), marital status, gender transformation.
It held that Ms Onu’s case did not fall within the relevant criterion type as the acts which she had complained of – underpayment, being required to work excessive hours etc. were not based on her immigration status although were conscious of her vulnerability of her immigration status and took advantage of it. The court did not accept that the immigration status of Ms Onu was intimately associated with her nationality as there were many non-British nationals working with the same vulnerabilities in their immigration status.
Further the CoA held that there was no indirect discrimination. Mr and Mrs Akwiwu committed a number of particular acts of mistreatment against Ms Onu however this could not be said to have amounted to “the mistreatment of migrant domestic workers”. Indirect discrimination is intended to address situations where the acts in question apply to everyone but unfairly disadvantage a person with a protected characteristic. This did not apply to Ms Onu’s circumstances.
In respect of the Second Question of Law the CoA held that as Mr Akwiwu knew or was reasonably expected to know, at the time of making the threating calls to Ms Onu’s sister, that part of the claim being bought against him by Ms Onu was a claim for racial discrimination under the Equality Act 2010. As such the evidential burden was on Mr Akwiwu to rebut the presumption. The EAT had been right to uphold the claims of Ms Onu for Victimisation.
The CoA dismissed the appeals of both Appellants against the decisions of the EAT as regards their claims of race discrimination and (in the case of Ms Onu) harassment.
In respect of Ms Onu’s victimization claim, the CoA upheld the decision of the EAT and remitted that part of the claim to the ET for a decision on remedy.
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