Onu v Akwiwu

The Court of Appeal considered two related employment appeals by migrant domestic workers alleging racial discrimination, harassment and victimisation and various statutory employment breaches. The court held that mistreatment of an employee because she is a vulnerable migrant domestic worker does not, without more, amount to direct racial discrimination: immigration status or vulnerability does not have the exact correspondence with the protected characteristic of nationality required for direct discrimination under the Race Relations Act 1976 or the Equality Act 2010. Indirect discrimination was also rejected where the pleaded provision, criterion or practice was no more than an abstraction of the individual acts of mistreatment. By contrast the court upheld the Employment Appeal Tribunal’s conclusion that post-employment victimisation can be proscribed and found that, on the evidence, the Employment Tribunal was wrong to dismiss the claimant’s victimisation complaint; that claim was remitted to the tribunal for remedy.

Background and parties

The claimants were Nigerian women brought to the United Kingdom on migrant domestic worker visas and employed by respondents who subjected them to poor pay, long hours, retained passports, threats and physical and verbal abuse. Both claimants brought claims in the Employment Tribunal for race discrimination, failure to pay the national minimum wage, breach of the Working Time Regulations and failure to provide written particulars; one claimant (Onu) also pleaded unfair dismissal, racial harassment and victimisation.

Procedural history

• The Employment Tribunals found for the claimants on most employment claims and awarded substantial sums (including awards for injury to feelings and aggravated damages in Onu).
• The respondents appealed to the Employment Appeal Tribunal. The EAT held that vulnerability arising from immigration status did not amount to direct racial discrimination and reversed the discrimination/harassment findings in Onu but concluded that post-employment victimisation is proscribed and remitted the victimisation issue.
• Permission to appeal to the Court of Appeal was given on the two points of principle (the immigration-status point and the post-employment victimisation point); the appeals reached the Court of Appeal together with the related Rowstock appeal.

Issues framed

1. Whether mistreatment because the claimant was a vulnerable migrant domestic worker (dependent on an employer for continued employment and leave to remain) amounted to direct or indirect racial discrimination under the Race Relations Act 1976 or the Equality Act 2010.
2. Whether victimisation under the Equality Act can arise after the employment relationship has ended and whether the Employment Tribunal was entitled to dismiss the claimant Onu’s victimisation claim on the facts.

Key statutory provisions and authorities

The court analysed section 1 and related provisions of the Race Relations Act 1976 and the definitions of "race" and direct and indirect discrimination in the Equality Act 2010 (in particular sections 9, 13, 19 and 23). It considered case law on causation and comparators, including the need for an exact correspondence between the ground relied on and the protected characteristic (citing Patmalniece and related authorities), and distinguished the type of "criterion" case from cases where a discriminator’s mental processes influenced his conduct.

Reasoning and outcome on the discrimination issues

The court accepted that the tribunals had found the respondents were influenced by the claimants’ immigration status and vulnerability. However, it held that the relevant ground relied upon by the claimants was their status as migrant domestic workers, which does not coincide exactly with the protected characteristic of nationality: many non-British nationals do not share the specific vulnerability of migrant domestic workers. Because there is no exact correspondence between immigration-status vulnerability and nationality, the mistreatment could not be treated as direct discrimination on grounds of race or nationality. The pleaded PCP for indirect discrimination was rejected as circular or as an impermissible abstraction from individual acts.

Reasoning and outcome on the victimisation issue

The court held that the Equality Act does proscribe post-employment victimisation. On the facts of Onu the Employment Tribunal should have treated it as likely that the respondent knew the broad nature of the proceedings (including that they contained discrimination allegations) and therefore the threats made in response to the proceedings were capable of being acts done "because of" the protected act; the EAT was right to overturn the tribunal’s dismissal and remitted remedy to the Employment Tribunal.

The appeal was allowed in part. The Court of Appeal dismissed the claimants’ appeals on their race discrimination and harassment claims, concluding that vulnerability because of immigration status does not equate to the protected characteristic of nationality and so does not establish direct discrimination, and that the pleaded indirect discrimination PCP was unsustainable. The court upheld the EAT’s conclusion that post-employment victimisation is prohibited and allowed the appeal on the victimisation issue in Onu, remitting remedy to the Employment Tribunal.

Employment Tribunals (Watford and London South) decided the claims in favour of the claimants on most employment issues; appeals were heard in the Employment Appeal Tribunal (decisions reported at [2013] ICR 770 and [2013] ICR 1039) and permission to appeal on points of principle was granted. The case proceeded to the Court of Appeal, neutral citation [2014] EWCA Civ 279, which decided the immigration-status discrimination issue against the claimants and the victimisation point in favour of the claimant Onu (remitting remedy).