FAILED RACE DISCRIMINATION CASE – MIGRANT WORKERS
The Employment Appeal Tribunal handed down judgment in Taiwo v Olaigbe on 5 March 2013 and held that unfavourable treatment on the grounds of vulnerability for reasons including immigration status does not constitute race discrimination.
The Claimant, a Nigerian woman, worked as a domestic worker in the home of the Respondents between February 2010 and January 2011. During this period she had been subjected to systematic and callous exploitation by the Respondents, including onerous working hours, restricted access to food, physical and verbal abuse and a failure to pay a salary in line with the National Minimum Wage.
Upon her departure, she was assisted in bringing a number of claims, including a claim for direct, or alternatively, indirect race discrimination. The employment tribunal accepted nearly all of her claims but held that the treatment she had suffered did not amount to direct or indirect race discrimination. The Claimant appealed this decision.
The judgment and comment on the decision
The EAT held that the appalling treatment was strongly associated with the Claimant’s vulnerability because of her immigration status, and in particular, because she relied upon the Respondents for the right to remain within the UK. However, the treatment did not amount to race discrimination because there were other factors which caused her vulnerability (such as low socio-economic status, lack of English, lack of support network and the imbalance of power in the relationship between the Claimant and the Respondents). This meant that the factual cause of the unfavourable treatment of the claimant was not indissociably linked to immigration status.
It is notable that a number of the factors the EAT held caused vulnerability in addition to immigration status are also linked to the Claimant’s race, namely lack of English and lack of support network (the rest of her family lived in Nigeria). It is also notable that the House of Lords in Nagarajan  1 A.C. 501 held that in order for treatment to amount to direct discrimination, race does not have to be the only reason but merely the principal reason.
The EAT also dismissed the claim for indirect discrimination on the basis that no provision, criterion or practice (PCP) had been identified. Langstaff J stated that mistreatment cannot be a PCP as this is not a neutral criterion.
This is unlikely to be the last word on the topic as permission has been sought by the Claimant and will be considered once the judgment in a factual similar case has been handed down.
Finally, this case is also important because the EAT held that legal costs can be recovered by a third party who is funding litigation, even though the party themselves is not incurring the cost. In this case ATLEU (previously the North Kensington Law Centre) was able to assist the Claimant without charging her by funding from the Legal Services Commission. The costs incurred by ATLEU were to be treated as costs incurred by the Claimant for the purposes of a costs application. This decision will be very useful for Law Centres, EHRC and the Legal Services Commission, particularly in these cash-strapped times