In conjoined appeals, two migrant domestic workers appealed against a decision ( EWCA Civ 279) that their employers’ mistreatment of them did not amount to race discrimination contrary to the Equality Act 2010 and the Race Relations Act 1976.
The workers were in the UK on migrant domestic worker’s visas obtained for them by their respective employers. Both sets of employers had supplied false information to the UK authorities to procure the issue of the visas. Both retained the workers’ passports, denied them rest periods and the minimum wage, and threatened and abused them. In each case the employment tribunal upheld the workers’ claims in respect of their rights to the minimum wage, rest periods and written terms of employment. In each case the EAT held that there was no race discrimination because the workers had been mistreated because they were vulnerable migrant workers reliant on their employers for their continued employment and residence in the UK, not because of their race. The Court of Appeal held that there was no direct discrimination because the mistreatment was because of the workers’ immigration status, which could not be equated with nationality. It held that there was no indirect discrimination because the employers had exercised no discriminatory policy, criterion or practice.
The issues were whether discrimination on the ground of immigration status amounted to (1) direct discrimination on the ground of nationality; (2) indirect discrimination against persons who shared that nationality.
HELD: (1) There was no doubt that the employers’ conduct would amount to direct discrimination if it was “on racial grounds” within the meaning of the 1976 Act or “because of” race (which included nationality) under the 2010 Act. The employers had treated the workers disgracefully, and they had done so because of the vulnerability associated with their immigration status. Immigration status was not indissociable from nationality. It was unhelpful to make comparisons with the flexible approach to the concept of nationality in other contexts such as ECHR art.14 and R. (on the application of Morris) v Westminster City Council (No.3)  EWHC 2191 (Admin),  1 W.L.R. 865, and the Crime and Disorder Act 1998 s.28 and Attorney General’s Reference (No.4 of 2004)  EWCA Crim 889,  1 W.L.R. 2810. The court in Morris did not have to address its mind to the difference between immigration status and nationality, Morris considered. Similarly, any such distinction was unlikely to be relevant in terms of whether an offence was racially aggravated for the purpose of the 1998 Act, Attorney-General’s Reference considered. The 2010 Act limited employers’ freedom to contract, or refuse to contract, with whomever they chose. It did so in order to protect specified groups, and the dividing line between which characteristics were protected and which were not was crucial. Parliament had not made immigration status a protected characteristic. While immigration status was a function of nationality, there was a variety of different immigration statuses. In the instant case the workers’ visas rendered them dependent on their employers for their continued right to live and work in the UK, and it was that which made them particularly vulnerable to the mistreatment they suffered. Had they been British nationals, or non-British nationals who had the right to live and work in the UK, they would probably not have been treated as they were. They were treated badly not because they were Nigerian, but because of their particular vulnerability arising, at least in part, from their particular immigration status. That disposed of the direct discrimination claim and was consistent with the approach in Patmalniece v Secretary of State for Work and Pensions  UKSC 11,  1 W.L.R. 783, Schnorbus v Land Hessen (C-79/99)  E.C.R. I-10997, Bressol v Gouvernement de la Communaute Francaise (C-73/08)  3 C.M.L.R. 20 and Hall v Bull  UKSC 73,  1 W.L.R. 3741. It made no difference that the instant cases were concerned with the employers’ mental processes rather than their application of an express criterion. The court still had to determine what criterion was in fact being used, and the employers in the instant case were applying a criterion relating to a particular kind of migrant worker whose particular immigration status made her vulnerable to abuse, Patmalniece, Schnorbus, Bressol and Hall considered (see paras 14- 30 of judgment).
(2) The workers accepted that there was no indirect discrimination. The fact that their cases could not be fitted into the concept of indirect discrimination supported the view that their mistreatment was because of reasons other than race. Indirect discrimination existed where an employer had a provision, criterion or practice which he applied to all employees but which favoured one group over another and could not objectively be justified. In the instant case there was no provision, criterion or practice which the employers would have applied to all their employees irrespective of whether they shared the workers’ immigration status. A provision, criterion or practice of mistreating workers who were vulnerable because of their immigration status would not apply to workers who were not vulnerable in that way, and could not be indirect discrimination. However, in other cases involving the exploitation of migrant workers it might be possible to discern a provision, criterion or practice which had an indirectly discriminatory effect (paras 31-33).
(3) Parliament might wish to consider whether the remedy provided by the Modern Slavery Act 2015 s.8 was too restrictive in scope, and whether an employment tribunal should have jurisdiction to grant recompense for the ill-treatment meted out to workers such as those in the instant case (para.34).