In an interesting and somewhat surprising decision, the Supreme Court considered whether the appalling treatment suffered by two Nigerian domestic workers at the hands of their employers amounted to race discrimination. 

The two claimants involved in this appeal had both come over from Nigeria to work for Nigerian employers in the UK on domestic workers visas. The terms of those visas meant that their continued right to live and work in the UK was largely dependent on their current employer, with the result that they were in a particularly vulnerable position as migrants in the UK.

In both cases, the respective employers treated the claimants extremely badly, consistently failed to pay the national minimum wage, did not allow rest breaks, forced the claimants to work long hours, and subjected them to verbal and physical abuse – treatment so bad that the Supreme Court in its closing remarks suggested that Parliament might want to consider extending the power to award compensation to victims under the Modern Slavery Act to the employment tribunals to deal with this sort of case.

However, whilst it was clear that the Supreme Court had sympathy for the claimants, it could not find that there had been race discrimination. The treatment meted out to the claimants was found to have been because of their particularly vulnerable immigration status and not their race or nationality. The Court accepted that immigration status is closely linked with nationality. However, not all migrants to the UK share the vulnerability of these claimants. The Court concluded that had these employers hired non-British nationals who had a more stable right to live and work in the UK, they would not have treated them so badly.

This case is (one would hope) quite unusual; however, it provides an interesting demonstration of the importance of causation when it comes to a consideration of discrimination. In this case the Court of Appeal was careful to drill down past the claimants’ race and nationality to establish the real cause of the discrimination and that is an approach which the tribunals will take whenever there are allegations of discrimination. The question is not just whether there has been less favourable treatment, but what the operative reason for that treatment was.

Taiwo v Olaigbe; Onu v Akwiwu  [2016] UKSC 31