Under S.9 of the Equality Act 2010 (EA 2010), the protected characteristic of ‘race’ includes colour, nationality and ethnic or national origins. In Onu v Akwiwu and another; Taiwo v Olaigbe and another, the Court of Appeal had to consider whether Nigerian migrant workers, who were mistreated by their employers, had suffered direct or indirect race discrimination.

Onu (O), a Nigerian migrant domestic worker, was not paid the national minimum wage, was not provided with appropriate accommodation and was repeatedly told that if she tried to run away she would be arrested and sent to prison because of immigration issues. Taiwo (T), also a Nigerian migrant domestic worker, did not receive the national minimum wage and was subjected to various acts of mistreatment, including:  verbal and physical abuse, being denied rest breaks, having to work demanding hours and living in poor conditions.

The Court of appeal agreed with the EAT that poor treatment because of “immigration status” could not be treated as discrimination because of “nationality”, as the former did not equate to the latter in the EA 2010. Not all non-British nationals working in the UK, whatever their nationality, are migrant domestic workers sharing the same vulnerability as O and T. Their mistreatment treatment was because of their immigration status, not because of their nationality, meaning that their direct discrimination claims had to fail.

The Court also agreed with the EAT that there was no basis for an indirect discrimination claim. Indirect discrimination requires showing that applying an apparently neutral provision, criteria or practice (PCP) to everyone, particularly disadvantages people sharing a protected characteristic. The mistreatment of migrant domestic workers is neither a provision nor a requirement nor a practice, however widely those terms are construed.  The factual situation had nothing to do with the kind of disadvantage that the concept of indirect discrimination is designed to address. In this case a number of acts of mistreatment were committed. If those acts do not constitute direct discrimination because they are not protected by the EA 2010, then logically the same acts cannot be grounds for a discriminatory PCP.

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