ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MR JUSTICE LANGSTAFF and members
UKEAT 0254 0285 12
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE RYDER
LORD JUSTICE UNDERHILL
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|AKWIWU & ANR
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Jake Dutton of Waldegraves for the Respondents in Onu
Robin Allen QC and Christopher Milsom (instructed by the Anti-Trafficking and Labour Exploitation Unit, Islington Law Centre) for the Appellant in Taiwo
Mr Olaigbe in person for the Respondents in Taiwo
Hearing dates: 5-7 November 2013
Crown Copyright ©
Lord Justice Underhill :
(1) The immigration status point. In neither case was the Claimant treated in the way that she was because she was Nigerian or because she was black. But in both cases the ET found that the mistreatment occurred because she was (as it was put in Taiwo) "a vulnerable migrant worker … who was reliant on the [employers] for her continued employment and residence in the UK". The question is whether discrimination against an employee because he or she is a vulnerable migrant worker constitutes either direct or indirect racial discrimination. The ET in Onu held that it constitutes direct discrimination, but in Taiwo it was held that it does not constitute either form of discrimination.
(2) The post-employment victimisation point. In Ms Onu's case the act of victimisation complained of occurred after the termination of her employment. In the EAT the employers argued that the 2010 Act does not proscribe post-employment victimisation. That point was not taken in the ET, where the victimisation claim was dismissed on the facts.
(A) We must decide the immigration status point in both cases.
(B) We must decide in Ms Onu's case whether the ET was entitled to dismiss the victimisation claim on the facts.
(A) THE IMMIGRATION STATUS POINT
"... She had responsibility (though not the sole responsibility) for the Akwiwus' older daughter, and was required to cook, clean, launder and iron. She had substantial responsibility for the home. On occasion she had to stay with the younger daughter in hospital. The Respondents took away her passport into their custody. She was paid just £50 per month during the first year of her employment in the UK, and £100 per month (in the UK) and N15,000 (in Nigeria) from 2009, rising to £150 and N35,000 from January 2010. She did not eat with the Respondents socially, though took meals with the children. She did not have appropriate and separate accommodation: at best she shared a room with the younger daughter in her cot. She was not registered with a GP. Generally, she was subject to threats and abuse from the Respondents, though not to such a level as to deter her from returning from Nigeria to the UK on the 4 or 5 occasions on which she did so during the two years of her employment"
I should add to that summary that the Tribunal found that Mrs Akwiwu's mother, who was a lawyer, drafted a contract which Ms Onu signed which contained express terms (a) that if she "absconded" within a year of starting work Mr and Mrs Akwiwu would report her to the police and the immigration authorities; and (b) that they would retain her passport until the termination of her employment, as they in fact did. Ms Onu was told on several occasions during her employment that if she tried to run away she would be arrested and sent to prison, and Mrs Akwiwu called her to watch news stories on the television about immigration issues.
"i. failing to pay a salary in line with the National Minimum Wage;
ii. onerous working hours;
iii. breach of the Working Time Regulations;
iv. subjecting the Claimant to physical/verbal abuse;
v. restricting access to food;
vi. her working and/or living conditions;
vii. failure to provide a written contract of employment; and
viii. constructive dismissal."
The ET found all those allegations proved. To put a little flesh on those bones, it found that she was paid £200 per month and was "on duty" throughout her waking hours. She was forced to hand back £800 in October 2010. She was given no payslips, and no tax or NI was paid. It found that she was not given enough to eat, so that she lost a lot of weight; that both Mr and Mrs Olaigbe on occasions hit her; and that they regularly shouted at her and made offensive comments about her intelligence and the poverty of her background. She was not permitted to go out on her own, though she went to take the children to playgroup. Mr Olaigbe retained her passport. When she said in mid-2010 that she wanted to go back to Nigeria Mr Olaigbe said that she would have to repay the money they had spent on her.
THE RELEVANT STATUTORY PROVISIONS
"(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if —
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or
(1A) A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (1B), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but–
(a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons,
(b) which puts or would put that other at that disadvantage, and
(c) which he cannot show to be a proportionate means of achieving a legitimate aim.
(1B) The provisions mentioned in subsection (1A) are–
(a) Part II;
Discrimination in the employment field was proscribed by Part II of the Act: I need not set out the specific provisions here. Section 3 read (again, so far as material) as follows:
"(1) In this Act, unless the context otherwise requires—
"racial grounds" means any of the following grounds, namely colour, race, nationality or ethnic or national origins;
"racial group" means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls.
(2) The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group for the purposes of this Act.
(4) A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) or (1A) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
Section 3A defined harassment. I need not set it out in full, but the definition included the requirement that the conduct in question be "on grounds of race or ethnic or national origins".
"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."
The various "protected characteristics" are defined in earlier sections. For present purposes we are concerned with section 9, which is headed "race" and reads (so far as material) as follows:
"(1) Race includes —
(c) ethnic or national origins.
(2) In relation to the protected characteristic of race —
(a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular racial group;
(b) a reference to persons who share a protected characteristic is a reference to persons of the same racial group.
(3) A racial group is a group of persons defined by reference to race; and a reference to a person's racial group is a reference to a racial group into which the person falls.
(4) The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group.
Indirect discrimination is defined at section 19 as follows:
"(1) 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.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.
(3) The relevant protected characteristics are—
Finally, I should note section 23 (1), which reads:
"On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case."
THE WAY THE CLAIMANTS PUT THEIR CASE
(1) Entry clearance for domestic workers was given on the basis that the worker had been engaged under a contract of employment to work for a specific employer, with whom, or with whose family, there had been a pre-existing relationship for at least a year. The employer had to be identified and a copy of the contract produced.
(2) Leave to remain would (in a case of the present kind) typically be given for a year but could be renewed.
(3) Although once in the UK a migrant domestic worker could in principle change employer during the currency of his or her leave to remain, they would be required to notify UKBA forthwith of the identity of the new employer and of the reason for the change. It would be a matter for UKBA's decision whether to renew the visa at the end of the relevant period.
Although by reason of point (3) migrant domestic workers were not wholly dependent on their current employers for the opportunity to work and remain in the UK, that would in most cases be the practical reality, not only because of the likely difficulty of finding another employer but because of the uncertainty about whether leave to remain would be extended in any new employment after the expiry of the current term.
THE REASONING OF THE ET
(1) At para. 113 the Tribunal summarises Ms Onu's case as being that "her migrant status allowed the respondents to offer her poorer terms of employment than would be given to a British worker … [and] gave them the option to exercise control over the claimant in a way that they would not conceivably have attempted with a worker of British national origin".
(2) At paras. 114-116 it summarises the decision in Mehmet (see para. 23 above). At para. 117 it quotes a passage from the judgment of the EAT (Slade J presiding) in Stockton on Tees Borough Council v Aylott  ICR 872 discussing the correct approach to the identification of a comparator in a direct discrimination claim.
(3) At para. 118 it summarises Mr Robottom's submissions on various points. The only point that I need note is that he relied on admissions by Mr and Mrs Akwiwu that they would not have treated "an employee of UK national origin who lived and worked within the UK" in the same way.
(4) Para. 119 of the Reasons begins as follows:
"… the approach of the Employment Appeal Tribunal in Mehmet must be followed as correct. It was not suggested here that Mr and Mrs Akwiwu had antagonism specifically towards the claimant because she was Nigerian but that, because she was Nigerian, they treated her as a migrant worker and as she was a migrant worker, in subjecting her to the detriment we have found the respondents treated her less favourably than they would have treated someone who was not a migrant worker."
The Tribunal then says that such treatment is sufficient to place the burden on the employers to show a non-discriminatory explanation, in accordance with the burden of proof provisions of in section 54A of the 1976 Act, as explained in Igen Ltd v Wong  ICR 931 and Madarassy v Nomura International plc  ICR 936.
(5) At para. 120 it sets out the explanation given on behalf of Mr and Mrs Akwiwu, which was apparently that they were acting lawfully according to Nigerian law and had no intention to discriminate. It continues, at para. 121:
"In the tribunal's judgment this explanation, even if it were made out on its facts, could not possibly discharge the burden of proof. The questions are: What was the reason for the treatment? Was it in no way whatsoever on the grounds of race? In the circumstances the employers in this case have fallen far short of proving that the treatment was in no way on the grounds of race. The reality is that they treated the claimant precisely in the way in which they did because of her status as a migrant worker which was clearly linked to the claimant's race. The burden of proof having passed under section 54A the respondents failed to demonstrate any reason for the treatment that was in no way associated with race."
"Was the Claimant treated less favourably than a hypothetical comparator by reason of race, ethnicity and/or national origin? The Claimant contends that her comparator is a domestic worker of British national origin and that the reason why she was treated less favourably was that she was of non-British national origin.
i. The Tribunal had some difficulty in accepting the comparator put forward by the Claimant as being an appropriate comparator in this case. A comparator must be someone who is in a similar situation to the Claimant but who does not share the relevant protected characteristic. The relevant protected characteristic is that the Claimant is Nigerian. Her circumstances were that she was a migrant worker subject to immigration control and from a poor background which made her vulnerable. A domestic worker of British national origin would not be subject to the same immigration controls and would not be under the control of his or her employer in terms of whether their visas are was renewed or not. Therefore the Tribunal finds that the appropriate comparator would be someone who was not Nigerian but was a migrant worker whose employment and residence in the United Kingdom was governed by immigration control and by the employment relationship itself.
ii. There was no evidence and no inference can be made that the Respondents would have treated the Claimant differently had she not been Nigerian. Whilst Mr Olaigbe says that he particularly wanted someone from the Yoruba tribe to care for his children to maintain his cultural heritage, this does not in the Tribunal's view mean that the treatment of the Claimant was because she was Nigerian. It was possible that the Respondents could have decided to employ a Ugandan to preserve the cultural heritage of Mrs Olaigbe. There is no reason to think that a Ugandan would have been treated more favourably than the Claimant. The Tribunal's finding is that the Claimant was not treated in the way that she was because she was Nigerian, or that this had any particular bearing on her treatment. The Tribunal's finding is that the Claimant was treated in the way that she was because she was a vulnerable migrant worker who was reliant on the Respondents for her continued employment and residence in the United Kingdom.
iii. Consequently, the Tribunal's finding is that the Claimant's has not discharged stage one of the burden of proof pursuant to the case of Igen v Wong as she has not shown a prima facie case that her treatment was because she was Nigerian. Therefore her claim of direct race discrimination must fail.
iv. If the Tribunal is wrong on this, the Tribunal considered what the reason was for the treatment of the Claimant in accordance with Shamoon. The Tribunal's finding is that the reason for the treatment was that she was a vulnerable migrant worker who the Respondents were able to control. The Tribunal finds that the Respondents treatment of the Claimant was not necessarily because she was Nigerian, but because she was a vulnerable migrant worker with limited resources open to her."
THE REASONING OF THE EAT
(1) At paras. 42-44 he refers to the confusion about whether the Claimant was contending that she had been discriminated against because she was Nigerian or because she was not British: see para. 22 above. Mr Allen submitted that Langstaff J appears to find that only the former case had been advanced and that that was wrong. I am not sure that that is a fair reading of the judgment, but the question is in any event academic because in the following paragraphs Langstaff J avowedly steps back from the minutiae of how the case was put and considers "the overall picture".
(2) At para. 46 Langstaff J accepts that the Claimant's treatment "was … strongly associated with her vulnerability". But, he says, the fact that she was subject to immigration control was only one of several circumstances contributing to her vulnerability, alongside such other factors as her poor socio-economic background, her inability to speak English and her having no other support network – all contributing to an "imbalance of power between the Respondents and the Claimant". He continues:
"If therefore, she was treated as she was because of her vulnerability, the fact that she was subject to immigration control (as no British national would be) would be a background circumstance, contributing to her vulnerability, but not a reason in itself for the treatment ... ."
He points out that the mere fact that the Claimant would not be present in the UK unless she had a visa could not itself mean that her immigration status was a "cause" of her subsequent mistreatment in any relevant sense. The corresponding passage in Onu is at paras. 48-49 (pp. 1053-4), where Langstaff J adds a reference to the decision of the EAT (Rimer J presiding) in Martin v Lancehawk Ltd UKEAT/525/03 (22.3.04).
(3) At para. 47 he says that "vulnerability is not indissociably linked with migrant status", since it can exist without it. The Claimant's status as a migrant domestic worker was only one element in her vulnerability. He concludes, at para. 48:
"We conclude that the factual cause of the unfavourable treatment of the claimant was not indissociably linked to immigration status ... . Mr. Milsom himself accepts that if that is our conclusion, the appeal under this head must fail. It does."
The corresponding passage in Onu is at para. 50 (pp. 1054-5). The language of "indissociability" comes from the jurisprudence of the CJEU to which I refer at para. 49 below and which Langstaff J discusses.
"We cannot accept such a PCP as he contended for. The reason is that the definition of this PCP inevitably answers the question to be posed: it is entirely circular. Where the issue is whether mistreatment has been caused to a person because of the application of a PCP, it is pointless to argue that the PCP is "mistreating" the person. Equally, the PCP will only apply to those who are migrant workers: it is not on the face of it a neutral criterion which disadvantages some of those to whom it applies disproportionately when compared to others to whom it applies. This cannot be a proper PCP in the circumstances. There is no room for one racial group to whom the PCP applies to be disproportionately adversely affected compared to another racial group, for the very definition states that each is mistreated. It commits the error of assuming that because treatment is obnoxious it is also discriminatory."
The corresponding passage in Onu is at paras. 54-55 (p. 1055).
DISCUSSION AND CONCLUSIONS
(a) Can those findings truly be treated as findings that their immigration status constituted the "grounds" of the Claimants' mistreatment within the meaning of section 1 (1) (a) of the 1976 Act – or (since here at least I should identify the language of both statutes) as findings that their mistreatment was "because of" their immigration status within the meaning of section 13 (1) of the 2010 Act ?
(b) If so, can their immigration status, in the sense identified above, be equated with their nationality ?
I will refer to those as "the 'grounds' issue" and "the nationality issue". I take them in turn.
The "Grounds" Issue
The Nationality Issue
Conclusion on Direct Discrimination
(B) MS ONU's VICTIMISATION CLAIM
"(1) A person (A) victimises another person (B) if A subjects B to a detriment because –
(a) B does a protected act, or
(b) A believes that B has done, or may do, a protected act.
(2) Each of the following is a protected act—
(a) bringing proceedings under this Act;
Article 8 of the comprehensively titled Equality Act 2010 (Commencement no. 4, Savings, Consequential, Transitional, Transitory and Incidental Provisions and Revocation) Order 2010 provides that the references in section 27 to "this Act" include reference to a "previous enactment", which is defined at article 1 as including the 1976 Act.
"The evidence of the claimant's sister, Eucharia Adonu was that she received a call on 11 January 2011 from Mr Akwiwu's driver in Nigeria saying that Mr Akwiwu needed to speak to her. It is clear from the telephone records produced that this call took place not on 11 but on 13 January 2011 and nothing in particular turns on the date. Ms Adonu's testimony in her witness statement was to the effect that he reported that Ms Onu, the claimant, had sued him and that if she thought things would end there she was wrong. It is alleged that he said to Ms Adonu that the claimant was going to suffer for it and then a few minutes later, after the line went dead, he phoned back and said that there would be [no] trouble for the claimant and for her so that she should get her sister to stop. She terminated the call. … It is of note that at no point does Ms Adonu say that Mr Akwiwu, in those telephone calls, referred to the fact that the claims made in the tribunal by the claimant contained allegations of discrimination of any sort."
(The "no" which I have square-bracketed must be a slip.) Mrs Adonu's account of the conversations as there recorded came entirely from her witness statement: she did not give oral evidence. Mr Akwiwu in his evidence accepted that he had spoken to her on two occasions but denied that he had made the threats alleged. (It will be noted that the threat which is the basis of the claim was made not to Ms Onu but to her sister. That would only constitute a detriment to her if the threat was communicated to her. The Tribunal makes no finding about how or when that occurred; but the common-sense assumption must be that her sister told her about it soon after the event.)
"Turning to the allegations made in the second complaint of victimisation and harassment, the tribunal found that this was not made out. The reason for that lies in the imprecision in Ms Eucharia Adonu's evidence. Taking the evidence of the claimant at its highest, that suggests that it was the commencement of proceedings that caused the first respondent to issue the threats in the first telephone call. However, those proceedings were not solely proceedings about discrimination related matters. They were proceedings, as we have found, about a number of other claims as well. In the absence of any specific reference to race discrimination matters in the telephone calls, and on the evidence of Mrs Adonu, taken at its highest, there was no such reference, the claimant has not established that the reason for the threats was because she had commenced proceedings for breach of the Race Relations Act 1976. In those circumstances, that claim cannot be upheld."
"A realistic approach must be taken to any situation in which it is said a protected act has occurred. In a conversation threatening retaliation if an action is not withdrawn there may be no reference to the subject matter of the claim—the nature of it must be known to the parties, for there would be no other purpose in seeking its withdrawal. If the claim includes reference to allegations under the Equality Act 2010 then we do not see it as a precondition for the threat to be actionable that in the course of making it the perpetrator should expressly refer to that fact. In context, here, Mr Akwiwu plainly knew of an action having been brought. Although it covered more than a breach of the Equality Act, it covered that too. The fact that he did not single out the Equality Act aspect for specific mention when making a threat does not mean that his action was not taken, at least in part, in response to the bringing of proceedings under that Act. Unless the suggestion that there has been an allegation by reference the Act can be discounted as being of such trivial significance, on the particular facts, as in substance to have amounted to no claim at all, then any detriment suffered from an act in response to the bringing of the claim is to be attributed to the bringing of the protected act. The allegation would have caused or contributed to the act in response."
"The evidence of the claimant's sister, Mrs Adonu, was of limited assistance to the tribunal. Partly this was because she was not able to attend the tribunal, being based in Lagos, Nigeria, but also because her witness statement itself was not specific enough, as will be seen afterwards, to support the claimant's case for victimisation."
Lord Justice Ryder:
Lord Justice Maurice Kay:
Note 1 It seems likely that some of the matters complained of by Mrs Taiwo also pre-dated the coming into force of the 2010 Act, but understandably no point seems to have been taken on this below. [Back] Note 3 Here and elsewhere the ET refers to an employee of “British [or UK] national origin”. This is inaccurate. National origin is not the same as nationality: they are specified separately in section 1 (1) (a), and though they overlap they do not mean the same thing. It is clear that the Claimant’s case was based on her nationality: see para. 21 above. But I take this to be loose language rather than a sign that the Tribunal did not understand the case being advanced. [Back] Note 4 This often happens. It is to be hoped that the observation of Lord Hope in Hewage v Grampian Health Board  ICR 1054 (see para. 32, at p. 1065) will discourage tribunals from resorting to the burden of proof provisions in cases where they are in a position to make positive findings of fact one way or the other. [Back] Note 5 It may, however, have something to do with the fact that the ET ran out of time and received closing submissions only in writing. This is not satisfactory. Written submissions are a very good thing, but the tribunal ought in a complex case of this kind to have the opportunity to test and debate them orally with the parties’ representatives. It ought normally be possible to insist, by firm case-management, that the evidence does not over-run, so that time remains for oral submissions; but where an over-run cannot be prevented it may in such a case be necessary – though I appreciate the practical difficulties – to schedule a further date for closing submissions. [Back] Note 7 The same is true of the other two Directives which underpinned the Sex Discrimination Act 1975 and the Disability Discrimination Act 1995 and which now underpin Part 2 of the 2010 Act, being Council Directives 2000/78/EC (generally referred to as the “Equality” or “Framework” Directive) and 2006/54/EC (generally referred to as the “Equality Treatment” or “Recast” Directive) – see arts. 2.2 (a) and 2.1 (a) respectively. [Back] Note 9 There was some discussion in the course of the oral argument about the position of nationals of the EU and EEA (and – at present – Switzerland) who enjoy the right to work in the UK; and it was canvassed whether the relevant nationality was not “non-British” but “non-EU/EEA/Swiss”. But the point was not pursued, and it makes no difference in principle. It is not only EU/EEA/Swiss nationals who may have no conditions on their right to work. [Back] Note 11 Mr Dutton made the point that such compensation could be obtained in the ordinary courts by a claim under section 3 of the Protection from Harassment Act 1997. That seems on the face of it to be correct, though we did not hear argument on the question. [Back]
Note 1 It seems likely that some of the matters complained of by Mrs Taiwo also pre-dated the coming into force of the 2010 Act, but understandably no point seems to have been taken on this below. [Back]
Note 3 Here and elsewhere the ET refers to an employee of “British [or UK] national origin”. This is inaccurate. National origin is not the same as nationality: they are specified separately in section 1 (1) (a), and though they overlap they do not mean the same thing. It is clear that the Claimant’s case was based on her nationality: see para. 21 above. But I take this to be loose language rather than a sign that the Tribunal did not understand the case being advanced. [Back]
Note 4 This often happens. It is to be hoped that the observation of Lord Hope in Hewage v Grampian Health Board  ICR 1054 (see para. 32, at p. 1065) will discourage tribunals from resorting to the burden of proof provisions in cases where they are in a position to make positive findings of fact one way or the other. [Back]
Note 5 It may, however, have something to do with the fact that the ET ran out of time and received closing submissions only in writing. This is not satisfactory. Written submissions are a very good thing, but the tribunal ought in a complex case of this kind to have the opportunity to test and debate them orally with the parties’ representatives. It ought normally be possible to insist, by firm case-management, that the evidence does not over-run, so that time remains for oral submissions; but where an over-run cannot be prevented it may in such a case be necessary – though I appreciate the practical difficulties – to schedule a further date for closing submissions. [Back]
Note 7 The same is true of the other two Directives which underpinned the Sex Discrimination Act 1975 and the Disability Discrimination Act 1995 and which now underpin Part 2 of the 2010 Act, being Council Directives 2000/78/EC (generally referred to as the “Equality” or “Framework” Directive) and 2006/54/EC (generally referred to as the “Equality Treatment” or “Recast” Directive) – see arts. 2.2 (a) and 2.1 (a) respectively. [Back]
Note 9 There was some discussion in the course of the oral argument about the position of nationals of the EU and EEA (and – at present – Switzerland) who enjoy the right to work in the UK; and it was canvassed whether the relevant nationality was not “non-British” but “non-EU/EEA/Swiss”. But the point was not pursued, and it makes no difference in principle. It is not only EU/EEA/Swiss nationals who may have no conditions on their right to work. [Back]
Note 11 Mr Dutton made the point that such compensation could be obtained in the ordinary courts by a claim under section 3 of the Protection from Harassment Act 1997. That seems on the face of it to be correct, though we did not hear argument on the question. [Back]