Onu v Akwiwu & Anor

Direct racial discrimination requires the protected characteristic to be a ground of treatment. It need not be the sole or conscious reason, but the ground and protected characteristic must correspond exactly. Vulnerability created by the immigration status of a migrant domestic worker is not equivalent to nationality, because many non-British nationals do not share that vulnerability. Particular mistreatment cannot be converted into indirect discrimination by describing it as a practice of mistreatment. Victimisation after employment remains prohibited where connected with the former employment. A respondent must know or believe that proceedings include a claim under the equality legislation; an express reference to discrimination in a retaliatory threat is unnecessary where that knowledge can fairly be inferred.

Two Nigerian migrant domestic workers brought Employment Tribunal claims arising from serious exploitation by their employers. The claims included race discrimination, racial harassment, national minimum wage breaches and other employment claims. The Employment Tribunals upheld most claims, but dismissed the direct discrimination claim in Taiwo and the victimisation claim in Onu.

The Employment Appeal Tribunal reversed the discrimination and harassment findings in Onu, upheld the dismissal of Taiwo’s discrimination claim, and found that post-employment victimisation was actionable. The appeals concerned whether vulnerability arising from immigration status constituted racial discrimination and whether the evidence established victimisation for bringing proceedings that included discrimination claims.

Disposition. The appeals concerning direct and indirect discrimination, and racial harassment in Onu, were dismissed. The appeal by Mr and Mrs Akwiwu against the finding of victimisation was also dismissed. The victimisation claim was remitted to the Employment Tribunal for assessment of remedy.

1. Under the Race Relations Act 1976 and the Equality Act 2010, direct discrimination may arise from an inherently discriminatory criterion or from the protected characteristic significantly influencing the discriminator’s mental processes. The characteristic need not be the sole or conscious reason.
2. The claimants’ immigration status and resulting vulnerability had significantly influenced the employers’ treatment of them. However, that ground did not correspond exactly with nationality. Not every non-British national working in the United Kingdom is a migrant domestic worker whose right to work and remain is practically dependent on the current employer. The mistreatment therefore was not direct racial discrimination. The same conclusion applied to the racial harassment claim.
3. The pleaded indirect discrimination case also failed. Mistreatment of migrant domestic workers was not a genuine provision, criterion or practice. A series of particular acts against an employee could not be converted into indirect discrimination by abstraction.
4. Post-employment victimisation connected with the former employment relationship was prohibited, consistently with the Court’s decision in Rowstock Ltd v Jessemey [2013] ICR 807. A respondent must at least know or believe that proceedings include a claim under the relevant equality legislation. Where the respondent knows proceedings have been brought, the broad nature of the claims may ordinarily be inferred. A retaliatory threat need not expressly mention the discrimination claim.
5. The Employment Tribunal had accepted the relevant evidence and had not explored with Mr Akwiwu whether he knew that the proceedings included racial discrimination claims. The evidential burden therefore required the Tribunal to proceed on the basis that he knew what could reasonably have been expected. The Employment Appeal Tribunal was right to overturn the dismissal of the victimisation claim.

• Court of Appeal (Civil Division) — appeals on discrimination and harassment dismissed. The appeal against the finding of victimisation dismissed, with the claim remitted for remedy.
• Employment Appeal Tribunal — decisions reported at [2013] ICR 770 and [2013] ICR 1039. The EAT dismissed Taiwo’s discrimination appeal, reversed Onu’s discrimination and harassment findings, and upheld a victimisation claim.
• Employment Tribunals — most employment claims succeeded. Taiwo’s race discrimination claim and Onu’s victimisation claim were dismissed at first instance.