Immigration status and nationality distinguished

06 July 2016

Two Nigerian nationals, who had come to the UK as domestic workers, were treated badly by their employers and went on to (individually) win various employment law claims. The claims raised an interesting question about race discrimination...

Taiwo v Olaigbe, and Onu v Akwiwu

The claimants in these cases were Nigerian nationals who had come to the UK as domestic workers. They were treated badly by their employers and went on to (individually) win various employment law claims.

Out of their cases sprang a question for the Supreme Court: does discrimination on grounds of immigration status amount to discrimination on grounds of nationality – and is it therefore race discrimination? (Nationality being an element of race).

The reason these people were badly treated was because of their vulnerability as migrant workers, not their nationality, said the Supreme Court. It couldn’t be direct discrimination. Nor could it be indirect discrimination because the employers had not applied a provision, criterion or practice (PCP) to their employees regardless of their immigration status. (In other cases, however, there could well be a PCP that has an indirectly discriminatory effect).

So, immigration status is not the same thing as nationality. They are linked, but they are not the same. But what was clear from this case was the fact that there is no effective remedy for non-financial loss (for humiliation and distress, for example) available to people treated as Ms Taiwo and Ms Onu were treated. Perhaps tribunals in the future will be able to use the Modern Slavery Act to put this right; the Court hinted at that possibility. We’ll have to wait and see.


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