Does the abuse of migrant workers amount to race discrimination?
This was considered by the Supreme Court in the case of Taiwo v Olaigbe and Another, and Onu v Akwiwu and Another .
Both of these cases considered whether Nigerian migrant domestic workers had suffered direct and indirect race discrimination because they were treated badly by their employers.
In both cases, the claimants were Nigerian migrant domestic workers. They were both employed on a migrant domestic worker visa. The claimants were treated badly by their respective employers in the following respects:
- they failed to pay the National Minimum Wage
- subjected the employees to verbal and physical abuse
- denied rest breaks
- imposed onerous working hours
- provided poor accommodation and working conditions
They both resigned and brought claims for direct and indirect discrimination.
Their claims failed in the Employment Tribunal. The Employment Appeal Tribunal also held that there was no direct or indirect race discrimination. Their appeals to the Court of Appeal also failed. They then appealed to the Supreme Court.
The Supreme Court also dismissed the appeals. The judge held that there could be no doubt that the conduct of the employers would amount to unlawful direct discrimination if it was because of their race. However, the judge held that the reason of the poor treatment was because of their vulnerable immigration status, and not because of any protected characteristic.
Whilst this highlights that any claims for direct race discrimination is limited to that protected characteristic rather than the immigration status, Lord Hale did express her dissatisfaction about the legislation.
The Modern Slavery Act 2015 (the Act) has been introduced to combat slavery or human trafficking and includes criminal offences of slavery, servitude and forced or compulsory labour. The Act also provides that if a person is convicted of such an offence then the court may also make a reparation order. Lord Hale suggested that Parliament may want to consider extending this power to Employment Tribunals.
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