Migrant domestic workers – race discrimination and post-employment victimisation

Wed, 05 Jun 2013

By James Dixon
Onu v Akwiwu and others, UKEAT/0283/12/RN, UKEAT/0022/12/RN raises some interesting legal issues in a context where the need for justice may lead to an extension of the concept of race discrimination.
 
The EAT judgment in Onu and others was handed down on 1 May 2013, Mr Justice Langstaff P, presiding.
 
Background
 
O had worked for EA in Nigeria as a domestic worker and in 2008 travelled to the United Kingdom to effectively be a domestic servant. On average she worked 84 hours a week doing domestic chores and looking after the family’s children. She was not given her own room and ate her meals with the children. At first she received £50 per month which was eventually increased to £150. The family retained her passport while she was in the United Kingdom and so she was unable to travel independently back to Nigeria. In June 2010, EA was threatening and abusive towards her so she left. She then brought a number of claims in the employment tribunal: failure to pay the minimum wage, direct and indirect race discrimination and harassment. Around 6 months after she had left A telephoned O’s sister in Nigeria to say there would be trouble if the claims were persisted with which gave subsequently to a victimisation claim. 
 
Employment Tribunal decision
 
The minimum wage claim was upheld at first instance, the tribunal finding that O had not been treated as a member of the family, a finding which was fortified by the evidence of threats and abuse and the keeping of her passport. As to discrimination the tribunal found that O had been treated less favourably not because she was Nigerian but  was treated less favourably than a person who was not a migrant worker would have been treated.  In this context, the tribunal considered – in accordance with the EAT decision in Mehmet v Aduma, 30 May 2007 (0573/06) – that there was a prima facie case that O had been treated less favourably because of her race and therefore regard the burden as shifting to the employer to supply a non-discriminatory explanation. That was explanation was that O had been treated in line with Nigerian law and paid above the national minimum wage in Nigeria. The tribunal concluded that these were inevitably linked to her race so upheld the claim. No finding was deemed necessary in respect of the indirect discrimination claim. The complaint of harassment was upheld. The tribunal dismissed the victimisation claim due to the lack of specific reference to race, the tribunal was unable to conclude that the threats resulted from the bringing of proceedings under the RRA 1976 (now contained within the Equality Act 2010). 
 
EAT decision
 
There was an appeal and a cross-appeal. 
 
The EAT upheld the tribunal as regards O not being treated as a member of the family. 
 
In terms of the race discrimination claim the EAT considered that the tribunal should have enquired more as to the reason for O’s ill-treatment. In the earlier and closely related case of Taiwo v Olaigbe, EAT (0254/12) the EAT decided that the Mehmet case was wrongly decided. A difference in treatment as between a migrant and non-migrant would raise the possibility of discrimination but that in itself was insufficient for the burden of proof to shift to the employer.  In controversial reasoning, the EAT said that none of what O complained of was inherently linked to her race. It was certainly associated with her subordinate and vulnerable status but her migrant, domestic status was a background factor as opposed to the immediate cause (the reason) of the discrimination. Thus, neither the finding on direct discrimination or harassment could stand.  
 
The EAT also found that the PCP identified by O, namely the mistreatment of migrant workers, amounted to a PCP: it was circular in that it answered the question posed.
 
What of post-employment claims for victimisation?
 
The EAT decided that Onu’s victimisation claim was made out in the facts. It had also to deal with the issue, as a preliminary matter, whether the victimisation could be relied upon because the relevant threats arose post-employment.  In the face of the Equality Act 2010 which does not expressly provide that post-termination victimisation is compensatable, the EAT relied upon the House of Lords judgment in Rhys-Harper v Relaxion Group plc , 2003 ICR 867 which decided that the obligation not to discriminate (or victimise) in the RRA 1976 could not be limited to the precise duration of the employment. Thus the terms ‘employer’ and ‘employee’ in the statutes preceding the Equality Act 2010 were to be read as ‘ex-employer’ and  ‘ex-employee’.   That was also contrary to the earlier decision of the EAT in Rowstock Ltd and others v Jessemey (Equality and Human Rights Commission Intervening), [2013] IRLR 439. 
 
Comment
 
In its reasoning, the EAT arrived at what some might regard as a strained interpretation of s108 of the Equality Act 2010. Thus in post-employment victimisation there are two conflicting decisions of the EAT. Before the Court of Appeal resolves the conflict, in the meantime it seems that that decision on Onu is to be preferred not only because it was a decision of the President but also – perhaps deliberately – a lay member on the panel had also sat in Jessemey.
 
As to vulnerable migrant domestic workers, the cases of Onu and Taiwo are to be heard in the Court of Appeal and it will be interesting to see if there is an endeavour to afford greater rights to that group or to adhere to a stricter and more orthodox interpretation of race discrimination.
 
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