The Equality Act outlaws discrimination (whether direct or indirect) on the ground of race. In Taiwo v Olaigbe, the Employment Appeal Tribunal (EAT) held that treating a migrant worker unfavourably because they were vulnerable to exploitation did not constitute race discrimination.
Basic facts
Ms Taiwo, a Nigerian, started working for Mr and Mrs Olaigbe in February 2010, but left in January 2011 claiming that they had systematically abused and exploited her. Mr Olaigbe was Nigerian, his wife Ugandan.
She brought a number of tribunal claims, including race discrimination, comparing herself with “a domestic worker of British national origin” who, she argued, would not have been treated the same way.
Relevant law
Direct discrimination - Section 13 of the Equality Act 2010 states that: "A person (A) discriminates against another (B) if, because of a protected characteristic, (A) treats (B) less favourably than (A) treats or would treat others."
Indirect discrimination - Section 19(1) of the Equality Act 2010 states that: "A person (A) discriminates against another (B) if (A) applies to (B) a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of (B)'s”.
Tribunal decision
Although the tribunal accepted Ms Taiwo’s account of “systematic and callous exploitation” by her employers, it rejected her claims of race discrimination as there was no evidence that she would have been treated any differently had she not been Nigerian.
It concluded that she was badly treated because she was a vulnerable migrant worker who was reliant on her employers for her continued employment and residence in the UK. She was not therefore protected under the Equality Act.
EAT decision
And the EAT agreed that Ms Taiwo’s race had nothing directly to do with her treatment (although this fell far short of appropriate UK standards). Instead it was because of her vulnerability, which could not be said to be an “attribute” peculiar to any racial group.
The fact that she was a migrant and therefore subject to immigration control (as no British national would be) certainly contributed to her vulnerability as it gave her employers control over her, but it was just one reason among many.
Others included her poor socio-economic background; her lack of English; her absence of a support network; educational and financial reasons; and the imbalance of power in the relationship between the two parties. As these factors also contributed to her vulnerability, the factual cause of the unfavourable treatment could not be said to be intrinsically linked to her immigration status.
With regard to her claim of indirect discrimination, the EAT criticised the tribunal for failing to identify a provision, criterion or practice (PCP) as required under section 19. However, it rejected Ms Taiwo’s argument that “the mistreatment of migrant workers” constituted a proper PCP.
It was not “a neutral criterion which disadvantages some of those to whom it applies disproportionately when compared to others to whom it applies”. She had made “the error of assuming that because treatment is obnoxious it is also discriminatory”.