Employment Rights Update – July 2016

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The Supreme Court handed down interesting Judgments on these two cases which involved two Nigerian nationals.

Taiwo (Appellant) v Olaigbe and another (Respondents) and Onu (Appellant) v Akwiwu and another (Respondents) [2016] UKSC 31

Ms Taiwo is married and has two children and was living in poverty in Nigeria. She entered the UK lawfully in February 2010 with a migrant domestic worker’s visa obtained for her by Mr and Mrs Olaigbe, her employers. Mr Olaigbe is also a Nigerian of Yoruba ethnicity, but comes from a wealthy and influential family.

Ms Taiwo was required to work most of her waking hours and was not given the rest periods required by the Working Time Regulations 1998 (SI 1998/1883). She was not paid the minimum wage to which she was entitled under the National Minimum Wage Act 1998. In 2010, she was paid the sum of £200 per month for three months, and there was a further payment of £300 in August. Then, in October 2010 she was forced to hand over £800 to the employers. She was not given enough to eat and suffered dramatic weight loss. She was subjected to both physical and mental abuse by Mr and Mrs Olaigbe and Mr Olaigbe’s mother, who was living with them for some of the time. The Employment Appeal Tribunal characterised her situation as “systematic and callous exploitation”.

Ms Taiwo eventually escaped in January 2011 with the help of Social Services.

The facts of Ms Onu’s case are similar – she was also a Nigerian national. She entered the United Kingdom in July 2008 on a domestic worker’s visa obtained for her by her employers, Mr and Mrs Akwiwu. She had previously worked for them in Nigeria. She was required to work, on average, 84 hours a week, looking after the home and the couple’s two children, one of whom was a prematurely born baby who required special care. She was not given the required rest periods or any annual leave and nor was she paid the minimum wage. She was threatened and abused by her employers and told that she would be arrested and imprisoned if she tried to run away.

Ms Onu managed to escape after walking eight miles to the home of a Jehovah’s Witness whom she had met on the doorstep.

They both brought successful claims; Ms Taiwo was awarded £30,458.85 under the National Minimum Wage Regulations, £1,520 for failure to provide written particulars of her contract of employment, and £1,250 for failing to provide rest periods. Ms Onu was awarded £11,166.16 for unfair dismissal, including the failure to provide a statement of terms and condition; £43,541.06 for unpaid wages; £1,266.72 for unpaid holiday; and £25,000 for injury to feelings and £5,000 aggravated damages.

They also sought compensation under the Equality Act, asserting they had been directly or indirectly discriminated against on grounds of their nationality.

The Supreme Court’s view

The Supreme Court disagreed with the claims for compensation under the Equality Act. It was not direct discrimination: the mistreatment was due to their vulnerable migrant status, not their nationality. It was not indirect discrimination, because there was no ‘provision, criterion or practice’ applied by the employers to their employees.

Baroness Hale suggested that Parliament might consider whether employment tribunals ought to be given jurisdiction to award compensation under section 8 of the Modern Slavery Act to grant recompense for ill-treatment to vulnerable migrant workers.

The facts of these cases are certainly shocking – and it offends against any sense of justice that proper remedies were denied to the Claimants.  Might the Supreme Court not have equally fairly decided that migrant status was, as a matter of common sense, generally connected to nationality?  Would, say, British workers have been treated in the same way?  Of course the courts are alive to the criticisms about “judicial activism” – and perhaps felt that it was a step too far to extend the ambit of the Equality Act without legislative say so.  Baroness Hale’s remarks are, however, to be warmly welcomed.

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