Can employees claim discrimination on the grounds of immigration status?
Not according to the recent case of Onu v Akwiwu.
This case concerned two Nigerian claimants Ms Onu and Mrs Taiwo who came to the UK on migrant domestic worker visas to work as domestic servants and who were subjected to abuse and poor working conditions by their respective employers.
The Claimants sought to bring a claim for racial discrimination on the grounds that they had been treated less favourably than others would be treated because of their nationality.
When considering the issue, the Employment Tribunal in both cases found that the less favourable treatment had occurred because of their immigration status and their ‘vulnerable position as migrant workers reliant on their employers for their continued employment and residence in the UK’. The Tribunal decided this unfavourable treatment was not because they were Nigerian or black.
On appeal, the question posed was whether their mistreatment was on the grounds of their nationality, a characteristic protected from discrimination under the Equality Act 2010.
In answering this, the court considered two key issues; firstly whether the Employment Tribunal had correctly decided that it was their immigration status that was reason for their mistreatment and secondly, whether their immigration status could be equated to their nationality.
The Court of Appeal held that their immigration status was the reason for their mistreatment. However, it was also decided that the Claimant’s immigration status did not exactly equate to the Claimant being of non-British nationality, as not all non-British nationals would be migrant domestic workers with this level of vulnerability.
As such, the Court of Appeal held that the Claimant’s immigration status could not be equated to their nationality, and therefore any mistreatment on the grounds of immigration status could not constitute direct racial discrimination and the claim failed.