29th June 2016
Race Discrimination Under The Equality Act 2010
The Supreme Court has held that two Nigerian employees did not suffer direct or indirect race discrimination when their employers treated them poorly due to their status as vulnerable domestic migrant workers.
Under the Equality Act 2010, direct race discrimination occurs where an employer treats an employee less favourably than it treats or would treat others because of the employee’s race. Indirect discrimination occurs where an employer applies a provision, criterion or practice to an employee and the provision, criterion or practice puts or would put persons of the employee’s racial group at a particular disadvantage when compared to other persons. A further element for indirect discrimination to be found is that the employer cannot show that the provision, criterion or practice is a proportionate means of achieving a legitimate aim.
In one case, the worker was exploited by her Nigerian employers as they did not pay her the National Minimum Wage, did not provide her with appropriate accommodation and told her that if she tried to run away, she would be sent to prison due to immigration issues.
In the other case before the Supreme Court, a female domestic worker was mistreated by not being paid the National Minimum Wage, being subjected to verbal and physical abuse, denied rest breaks, having onerous working hours imposed on her and being subjected to poor living and working conditions.
The matters were heard by the Employment Tribunal and thereafter the Employment Appeal Tribunal and the Court of Appeal. The Supreme Court then heard the cases.
The Supreme Court held, in respect of direct discrimination on the grounds of race, that there was no doubt that the conduct of the employers would have been direct discrimination if the reason for the treatment was race. However, the treatment was held to be due to their vulnerable immigration status. The Supreme Court held that the treatment due to immigration status did not come within the definition of race for the purposes of the Equality Act.
To the issue of indirect discrimination, the Supreme Court did not find that the situation fitted with the definition within the act as there was no provision, criterion or practice which had been applied.
The Supreme Court expressed some unease about the inadequacy of the law for protecting vulnerable migrant domestic workers as it does not provide recourse for such individuals who have suffered non financial loss. The individuals in this case received substantial awards for breaches of the National Minimum Wage Regulations and Working Time Regulations, but not for the distress and suffering which had been caused to them.
The Court noted that the judgement did not mean that the employees did not deserve a remedy and that Parliament may wish to consider extending powers to employment tribunals for them to be able to grant remedy under the Modern Slavery Act which is only applied by criminal courts.