Does the unpleasant treatment of migrant worker amount to race discrimination?

In this month’s E-News, we look at whether post employment victimisation is lawful and whether the unpleasant treatment of a migrant worker amounts to race discrimination. In the news, we provide an update on the Government’s announcement to increase the National Minimum Wage.

Does the unpleasant treatment of migrant worker amount to race discrimination?

The Claimant, Miss O, was a Nigerian migrant domestic worker in the UK. Her employer exploited her by not paying her the National Minimum Wage nor did they provide appropriate accommodation. Miss O was advised on several occasions that, if she tried to run away, she would be arrested and sent to prison because of her immigration status.

Miss O left and brought claims in the Employment Tribunal for direct and indirect race discrimination.

Six months later, Miss O’s former employer telephoned Miss O’s sister and informed her that if she (Miss O) thought that things would end there she was wrong and that she would suffer for it.

In light of this conversation, Miss O brought a victimisation claim.

The Employment Tribunal upheld Miss O’s race discrimination claim and held that Miss O was treated less favourably by her employers because of her status as a vulnerable migrant worker, which was linked to her race. The victimisation claim failed because she had not established that the reason for threats was that she had commenced employment tribunal proceedings.

The Employment Appeal Tribunal overturned both aspects of the Employment Tribunal’s decision. In relation to the race discrimination claim, the Employment Appeal Tribunal held that Miss O had not been subject to direct race discrimination because the awful treatment was not associated with her race but because of her subordinate position. In relation to the victimisation claim, the Employment Appeal Tribunal rejected the Tribunal’s reasoning for rejecting this victimisation claim and the fact that the employer did not mention Miss O’s discrimination claim during his telephone call to her sister did not prevent it from amounting to victimisation.

Miss O appealed to the Court of Appeal in relation to the race discrimination point, and her employer appealed in relation to the victimisation point. The Court of Appeal agreed with the Employment Appeal Tribunal. The Court of Appeal held that there was no race discrimination and also agreed that Miss O had suffered post-employment victimisation.

The Court of Appeal confirmed that, whilst migrant domestic workers are probably more vulnerable to have their employment rights abused rather than other workers, this treatment does not necessarily amount to direct race discrimination. In relation the victimisation point this was considered in a related case that was considered at the same time, which is considered below.

Is post-employment victimisation protected under the Equality Act 2010?

Following the implementation of the Equality Act 2010, the circumstances by which a victimisation claim could be brought became unclear. Section 108 of the Equality Act 2010 protects former employees from post-employment discrimination and harassment.

However, it does not expressly protect against post-employment victimisation.

In the case of Jessemey v Rowstock Limited and another, the Employment Tribunal held that post-employment victimisation is not covered. This decision was upheld by the Employment Appeal Tribunal.

Mr Jessemey appealed to the Court of Appeal.

The Court of Appeal unanimously upheld Mr Jessemey’s appeal holding that post-employment victimisation must be prescribed by the Equality Act. Lord Justice Underhill, who gave the leading judgement, agreed that the wording in Section 108(7) of the Equality Act does not cover post-employment victimisation. However, he said that it had to be read in the context in which it was produced. He stated that the literal meaning must be an unintentional drafting error. In particular, taking into account that at the time the Equality Act 2010 was drafted, post-employment victimisation was unlawful.

If post-employment victimisation was not prescribed, the UK would be in breach of its obligations under EU law.

This case has provided the clarification needed as to whether post-employment victimisation is lawful.

In the News – Update on the National Minimum Wage

In the news, the Government has announced the following increases to the National Minimum Wage (NMW), which will take effect from 1 October 2014. The new rates are as follows:-

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  • The standard adult rate (for workers aged 21 and over) will rise by 3% to £6.50 an hour.
  • The youth development rate (for workers aged between 18 and 20) will rise by 2% to £5.13 an hour.
  • The young worker’s rate (for workers aged under 18 but above the compulsory school age who are not apprentices) will rise by 2% to £3.79.
  • The rate of apprentices will rise by 2% to £2.73 per hour.

BIS has published details of its updated policy on enforcement of the NMW, which includes the revised scheme for naming and shaming employers, and the new system of increased financial penalties of up to £20,000 for the most serious cases; this has increased from £5,000. The penalty percentage has increased from 50% to 100% of the underpayment.

Any employers issued with Notice of Underpayment by HMRC, no matter how small the underpayment, will be referred to BIS automatic naming.

Vince Cable announced the first 5 employers named under the strict name and shame rules. Overall the 5 employers owed workers a total of over £6,800 in arrears and were charged financial penalties totalling £3,381.40. These financial penalties were imposed before the increase to financial penalties came into effect.

If you have any queries then please do not hesitate to contact:

Sejal Raja
e: sejal.raja@rlb-law.com
t: 020 7227 7410
March 2014

© RadcliffesLeBrasseur


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.