Taiwo v Olaigbe

Exploitation of a migrant domestic worker is not direct race or nationality discrimination merely because immigration status contributed to the worker’s vulnerability. The decisive question is the reason for the treatment. Immigration status may be a background circumstance rather than the operative cause.

For indirect discrimination, the tribunal must identify the precise provision, criterion or practice, establish that it was applied, and assess its disparate effect on the relevant racial group and the claimant. A proposed PCP consisting of mistreatment of migrant workers is circular and cannot establish indirect discrimination. Employing persons who hold a migrant domestic worker visa is insufficient without evidence of the requisite disadvantage.

Costs may be recovered where expenses were incurred on behalf of a party, even if that party incurred no personal liability.

The claimant, a Nigerian migrant domestic worker, succeeded before the Employment Tribunal on several employment claims after the tribunal accepted that she had been systematically exploited by the respondents. It rejected claims of direct and indirect race discrimination.

On the substantive appeal, she argued that treatment arising from her migrant-worker visa was indissociably linked with her nationality or national origin. On a separate appeal, she challenged refusal of costs because her representation had been funded through a law centre and the Legal Services Commission. The central issues were the causation of direct discrimination, the identification and analysis of a PCP under the Equality Act 2010, and the construction of the costs rules.

The substantive appeal was dismissed. The costs appeal was allowed and remitted to the Employment Tribunal.

1. Direct discrimination. The tribunal’s finding was that the claimant was mistreated because she was a vulnerable migrant worker whom the respondents could control, not because she was Nigerian. Immigration control, lack of English, poverty, lack of support and the claimant’s dependence on her employers contributed to her vulnerability. Those matters did not make immigration status the operative reason for the treatment. The appeal therefore failed on direct discrimination.
2. The tribunal was entitled to focus on the protected characteristic advanced before it. The authorities concerning decisions based on inherently racial criteria did not require a different result because the factual issue remained whether immigration status was indissociably linked with national origin in the circumstances found.
3. Indirect discrimination. The tribunal erred by failing to identify the PCP before considering group disadvantage. The correct sequence was to identify the PCP, establish its application, determine whether it disadvantaged the claimant’s racial group compared with another group, require real rather than merely statistical-artefact disadvantage, establish that the claimant suffered the group disadvantage, and then consider objective justification.
4. The suggested PCP of mistreating migrant workers was circular because it assumed the mistreatment in issue and did not identify a neutral criterion producing disproportionate disadvantage. A requirement that a domestic worker hold a migrant domestic worker visa might disadvantage persons unable to obtain one, but did not logically cause a greater incidence of mistreatment. No tenable PCP had been advanced before the tribunal, so remission was inappropriate.
5. The costs rule expressly covered fees, charges, disbursements or expenses incurred “by or on behalf of” a party. Its wording differed materially from that considered in Walsall Borough Council v Sidhu. The tribunal therefore erred in treating that authority as controlling. The tribunal was directed to decide whether the respondents’ conduct justified a costs order, treating expenses incurred by the law centre as costs incurred on the claimant’s behalf.

• Employment Tribunal accepted the claimant’s evidence of exploitation, upheld several employment claims, rejected direct and indirect discrimination claims, and refused costs.
• Employment Appeal Tribunal dismissed the substantive discrimination appeal, allowed the costs appeal, and remitted the costs issue to the tribunal.