Onu v Akwiwu & Anr; Taiwo v Olaigbe & Anr [2014] EWCA Civ 279 Racial Discrimination & Post-Employment Victimisation: Two Important Points of Principle

25 Apr

The Court of Appeal has recently (13th March 2014) dealt with two important points of principle arising out of two claims for discrimination which were broadly similar in nature. These claims were however brought under different legislation owing to the fact that the claims straddle the coming into force of the Equality Act 2010; they were therefore brought under this statute and the Race Relations Act 1976.

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Courts of Justice
The Court of Appeal has recently (13th March 2014) dealt with two important points of principle arising out of two claims for discrimination which were broadly similar in nature. These claims were however brought under different legislation owing to the fact that the claims straddle the coming into force of the Equality Act 2010; they were therefore brought under this statute and the Race Relations Act 1976.

The Claimants were both Nigerian ladies who had come to the UK on a migrant domestic work visa and worked for two separate couples as domestic servants. The employers were either Nigerian or Ugandan themselves. Both women were badly treated by their employers, required to work long hours for below minimum wage and had their passports retained by their employers. They were exploited and abused and denied many employment rights. Both Claimants claimed discrimination and Ms Onu also brought a claim for victimisation.

The Immigration Status Point

The question posed to the Court of Appeal was whether the discrimination against an employee because of their vulnerable immigration status constituted direct or indirect racial discrimination. In the case of Onu the ET held that it was direct discrimination, but in the case of Taiwo it held that it was neither direct nor indirect discrimination. The EAT held that in both cases the mistreatment of the workers as a result of their vulnerability as migrant workers did not constitute direct racial discrimination and the Court of Appeal agreed with this decision, determining that the Claimant’s mistreatment was not as a result of their race or nationality; their immigration status could not be ‘equated with their nationality’.

In reaching this conclusion, the Court of Appeal looked at whether the grounds of discrimination corresponded to those set out in the Act.  Whilst the Court concluded that the Respondents were influenced by the Claimants’ immigration status when they mistreated them, Underhill LJ stated that what was important was that not all non-British workers were migrant domestic workers or shared an equivalent vulnerability to the Claimants in this case. It could not be said that the reason for the mistreatment was the fact that they were non- British workers, and therefore it could not be as a result of this particular protected characteristic. It was unsuccessfully argued on behalf of the Claimants that immigration status and nationality are ‘intimately associated’ and as such discrimination on the grounds of the former should be treated as discrimination on the grounds of the latter. This submission was rejected by Underhill LJ, following the Supreme Court in Patamalniece v Secretary of State for Work and Pensions [2011] UKSC 11 [2011] 1 WLR 783, on the basis that discrimination on a particular ground will only be treated as discrimination on the grounds of a protected characteristic if that ground and the protected characteristic exactly correspond.

The post employment victimisation point

Ms Onu complained of victimisation that occurred after the termination of her employment, namely two threatening phone calls made by one of the Respondents to her sister in response to her initiation of proceedings. The Employers argued in the EAT that the 2010 Act does not proscribe post- employment victimisation. This point was not argued in the original ET, the claim being dismissed on its facts in the Tribunal.

The Court of Appeal upheld the decision of the EAT that post employment victimisation occurred and that it was proscribed by the Act. This followed the decision of the same judge, Underhill LJ, only a few weeks earlier (26th February 2014) in Jessemey v Rowstock Ltd & Anr [2014] EWCA Civ 185.

It was said by the Langstaff J in the EAT that a ‘realistic approach’ needed to be taken, and that in a conversation threatening retaliation if action was not withdrawn, the nature of the claim must be known to the parties otherwise there would be no purpose in seeking the withdrawal; the fact that the threat does not single out the bringing of the claim under the Equality Act 2010 did not mean that the action was not taken, at least in part, in relation to the bringing of proceedings under that Act. The Court of Appeal agreed with this held that the Respondents would have known of the nature of the Claimant’s claim from the clear Particulars served upon them. Although the Court of Appeal upheld the decision as to the post employment victimisation, it also remitted it back to the ET with the remarks that the award for this part of the claim was probably not worth much.

Gemma White

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