Onu v Akwiwu

A domestic worker is not treated as a family member merely because accommodation and meals are provided. The National Minimum Wage family exemption requires an overall assessment of integration into the family, including accommodation, meals, shared tasks and leisure. Onerous employment duties may be inconsistent with the exemption.

For direct discrimination, a difference of race and treatment is insufficient to shift the burden of proof. Immigration or migrant-worker status may be a background circumstance contributing to vulnerability, without being the reason for the treatment. An alleged PCP which simply describes mistreatment is circular and cannot establish indirect discrimination.

Victimisation after employment has ended is actionable. A protected act need not be the sole reason for detriment, and an express reference to discrimination in a threat is unnecessary.

Ms Onu, a Nigerian migrant domestic worker, succeeded before the Employment Tribunal on claims including direct race discrimination, harassment, unpaid minimum wage and Working Time Regulations breaches. The Tribunal rejected the National Minimum Wage family exemption and dismissed claims for indirect discrimination and post-termination victimisation.

The employers appealed against the discrimination, harassment and minimum-wage findings. Ms Onu brought contingent cross-appeals concerning indirect discrimination and victimisation. The central issues were whether migrant-worker status established direct or indirect race discrimination, whether the family exemption applied, and whether the Equality Act 2010 permitted a post-termination victimisation claim.

1. National Minimum Wage. The family exemption required an overall assessment of whether Ms Onu was treated as a member of the family and integrated into it. Relevant indicators included accommodation, meals, sharing of household tasks and leisure activities. The extent and onerousness of contractual work could be relevant, since excessive demands may be inconsistent with family membership. The Tribunal’s conclusion that Ms Onu was not treated as a family member was a finding of fact open to it. The appeal on this ground was dismissed.
2. Direct discrimination and harassment. The Tribunal had wrongly treated Mehmet v Aduma as binding and had shifted the burden of proof without sufficient material beyond difference of race and difference of treatment. Mehmet was flawed and provided no relevant binding principle. The need for a migrant-worker visa was a background circumstance contributing to vulnerability, not an immediate cause of the mistreatment. The case was a reasons-for case, not a criterion case. The direct discrimination finding was reversed, and the harassment claim failed with it.
3. Indirect discrimination. The proposed PCP, namely mistreatment of migrant domestic workers, was circular and did not identify a neutral provision, criterion or practice applied to a comparison group. The contingent claim therefore failed. The Tribunal was not required to permit a late amendment, although a properly identified PCP might in another case produce a different result.
4. Victimisation. Reading the Equality Act 2010 as a whole, post-termination victimisation was actionable. Section 108(7) made sense as a provision preventing double recovery and did not exclude such claims. The Tribunal’s contrary approach in Jessemey was not followed. A threat made in response to proceedings containing Equality Act claims could amount to victimisation even without an express reference to those claims. The protected act need only have caused or contributed to the detriment. The victimisation claim was remitted for a remedies hearing.
5. Permission to appeal was granted on the statutory-construction and discrimination issues.

• Employment Tribunal: found for Ms Onu on direct race discrimination, harassment, National Minimum Wage and Working Time Regulations claims; rejected indirect discrimination and post-termination victimisation.
• Employment Appeal Tribunal: upheld the family-exemption finding, reversed the direct discrimination and consequential harassment findings, dismissed the indirect-discrimination claim, and held that actionable post-termination victimisation was established in principle. The victimisation claim was remitted for a remedies hearing.