Onu v Akwiwu

A difference in race and less favourable treatment do not, without more, shift the burden of proof in a direct discrimination claim. Migrant status and immigration vulnerability may be background circumstances enabling exploitation, but they are not necessarily the immediate reason for the treatment.

A purported PCP of mistreating migrant domestic workers is circular and cannot establish indirect discrimination. Post-termination victimisation is actionable under the Equality Act 2010. A threat responding to proceedings that include a protected act need not expressly identify the discrimination claim.

The claimant, a Nigerian live-in domestic worker, succeeded before the Employment Tribunal in claims including direct race discrimination, harassment, national minimum wage arrears and working-time claims. The Tribunal rejected her indirect discrimination and post-employment victimisation claims.

The employers appealed the discrimination finding and the rejection of the family-worker exemption from the National Minimum Wage Regulations. The claimant cross-appealed the dismissal of victimisation and, contingently, indirect discrimination. The central issues were whether migrant-worker status established direct or indirect race discrimination, whether the minimum-wage exemption applied, and whether post-termination victimisation was actionable.

1. The appeal and cross-appeal were allowed in part. The Tribunal's finding of direct race discrimination, and consequently its harassment finding, was reversed. The claimant's victimisation claim succeeded and was remitted for remedies. The employers' national-minimum-wage appeal was dismissed.

2. The family-worker exemption required an overall assessment of whether the claimant was treated as a family member rather than as a domestic servant. The Tribunal permissibly relied on her separate meals and accommodation, the absence of equal sharing of household life, threats and abuse, and retention of her passport. Its factual conclusion that she was not integrated into the family could not be disturbed.

3. The Tribunal erred by treating Mehmet v Aduma as requiring the burden of proof to shift. Under Igen v Wong and Madarassy v Nomura, difference in protected status and treatment show only a possibility of discrimination. The treatment was not inherently based on nationality. The claimant's migrant status and vulnerability were background factors, not an activating cause of the mistreatment. There was therefore insufficient material to shift the burden of proof.

4. The alleged PCP, mistreatment of migrant domestic workers, was circular. It was neither a neutral criterion nor one capable of identifying disproportionate disadvantage between groups to whom it applied. No other PCP had been advanced.

5. On the domestic construction of the Equality Act 2010, section 39 encompasses post-termination victimisation. Section 108(7) prevents double recovery where conduct is also victimisation; it does not exclude such victimisation from protection. The Tribunal erred by requiring the retaliatory threat expressly to refer to discrimination proceedings. Proceedings containing an Equality Act claim were a protected act, and the threat was actionable victimisation.

• Employment Appeal Tribunal: Allowed the employers' appeal on direct discrimination and the claimant's contingent cross-appeal was dismissed. Allowed the claimant's victimisation cross-appeal and remitted that claim for a remedies hearing.
• Employment Tribunal, Watford: In written reasons promulgated on 16 January 2012, upheld direct discrimination, harassment, national minimum wage and working-time claims, but dismissed indirect discrimination and post-employment victimisation.