“The mistreatment of migrant domestic workers by employers who exploit their employees’ vulnerable situation is clearly wrong”, stated Lady Hale at the start of a judgment which will come as a real disappointment to campaigners for better protection for this exceptionally vulnerable group.
Ms Taiwo, who is a Nigerian national and of Yoruba and Nigerian ethnicity, and Ms Onu, also Nigerian, are both migrant domestic workers. The Employment Appeal Tribunal characterised the treatment of Ms Taiwo as “systematic and callous exploitation”. The employment tribunal found that Ms Taiwo was treated as 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.” Ms Onu was also subjected to very abusive treatment until she managed to escape from her employers. In both cases, the employees were “treated disgracefully, in a way which employees who did not share their vulnerable immigration status would not have been treated.”
Before the Supreme Court, there was only one question to be answered: Whether discrimination, because of, or on grounds of immigration status amounts to discrimination because of, or on grounds of nationality.
For the appellants, it was argued that immigration status is a function of nationality and was so closely associated as to be indissociable from it. The Supreme Court decided against that argument, concluding that because many non-British nationals living and working here do not share that vulnerability, the indissociability argument failed. So, any claim for direct discrimination was necessarily at an end. The criterion being adopted by the employers was not nationality, but being “a particular kind of migrant worker” whose particular status made her vulnerable to abuse. The implications that this conclusion has for arguments of indissociabilty will be considered in a separate article.
Nor could it be a case of indirect discrimination, not least because nobody could formulate a neutral PCP.
The Supreme Court considered that the appellants deserved a remedy, but that the present law could not provide redress. Recognising the particular vulnerability of this group, it has passed responsibility back to Parliament to fill the loophole in meaningful protection. Lady Hale drew specific attention to the question of whether the remedy provided by s.8 of the Modern Slavery Act is too restrictive in scope, and whether an employment tribunal should have jurisdiction to grant some recompense for the ill-treatment of such workers.
Should employment tribunals have the power to rectify the wrongs committed on migrant workers?
There is little doubt that employment tribunals should have the power to provide remedy for abusive and exploitative treatment. It is already able to provide remedy for unfair dismissal, breaches of contract, unpaid wages and the like, and it is a forum used to dealing with the complexities of employment relationships. The principles of discrimination could be used to inform judgments on declarations, injury to feelings awards and likely aggravated damages, should Parliament give tribunals the tools with which to do so.
Parliament needs to consider how best this can be met by amending the scope of the remedy provisions within the Modern Slavery Act. Given the evidence available as to the particular vulnerabilities of migrant workers, and noted even within the Independent Review of the Overseas Domestic Workers Visa (2015), commissioned by the Home Office, Parliament may also consider amending the Equality Act to make specific provision for immigration status to be deemed a protected characteristic for the purposes of overseas domestic workers claims, or to deem immigration status as indissociable from nationality for such claims. Whatever way it chooses to provide protection, urgent steps must be taken by Parliament to remedy this unacceptable loophole in protection.
In the meanwhile, what can lawyers do to get around the Supreme Court findings?
Of course it may still be possible to argue that the offence amounts to slavery, servitude, or forced or compulsory labour under s.1 Modern Slavery Act, and/or (perhaps in rare cases) Article 4 of the European Convention on Human Rights. Or it may amount to a tort. There are, of course, criminal offences also relating to false imprisonment, harassment, blackmail, assault and battery which may be relevant for victims of abusive employment relationships in this context.
But what of the employment tribunal? Whilst immigration status will now not constitute an indissociable feature of nationality, and thus cannot be protected under the Equality Act, advisers should consider whether there are features of the treatment which enable a sex discrimination claim to be brought. A large percentage of this invisible group are women. There may be features of the way in which she is treated which could be run in comparison with other domestic help, such as a gardener, for example, or a hypothetical comparator. It may still, however, be difficult to get around “the reason why” question being something other than the vulnerability of her immigration status. Still, it is not impossible. Nor, with the right facts, would a race claim be precluded, either by direct or indirect discrimination, or harassment. Caste, and therefore race/ethnicity, may be features worth considering in domestic worker exploitation. Remember that it doesn’t have to be the whole reason for the treatment. Age, too, may be a valuable and relevant characteristic – either because the worker is young or old. Victimisation claims could exist, in particular factual scenarios, where a worker complaints to her employer about the treatment she is receiving.
Armed with the right facts, arguing an Equality Act claim may still be possible for victims of trafficking and advisers must be alert to the different ways in which they can ensure they capture in the facts to be set out in the pleadings all relevant aspects of treatment. At least, that is, until Parliament ensures that there is an appropriate remedy available in the employment tribunal for victims of forced labour, trafficking or exploitation.
Cloisters advises on a range of claims associated with modern slavery and trafficked employees.