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Migrant Domestic Workers and Race Discrimination

In a guideline decision that will be greeted with dismay by those who campaign for the rights of vulnerable migrant workers, the Court of Appeal has ruled that two Nigerian women who were appallingly mistreated by those who employed them as domestic servants were nevertheless not victims of race discrimination.

The Court noted that, although the women’s uncertain immigration status had put them at their employers’ mercy, the absence of a right to live and work in Britain was not a protected characteristic. In those circumstances, they had not been discriminated against on grounds of their non-British nationality.

The two cases had resulted in conflicting decisions by Employment Tribunals (ETs); however, the Employment Appeal Tribunal subsequently ruled that the women’s mistreatment had arisen due to their particular vulnerability as migrant workers and that that did not constitute race discrimination.

In dismissing their appeals, the Court of Appeal noted that there are very many non-British nationals living and working in the UK whose immigration papers are in order and who are permitted to work freely. It was not enough to argue that the women’s lack of permission to live and work in Britain was ‘intimately associated’ with their non-British nationality. The reason for the discrimination that the women had endured was not their race but their peculiar dependence on their employers as migrant domestic workers with uncertain immigration status.

The Court dismissed an appeal by the couple who had employed one of the women against a finding that she had suffered victimisation in the form of threatening phone calls made to her sister. That matter was remitted to the ET for an assessment of damages.

The women had succeeded before the ETs under other heads of claim, including the failure to pay them the national minimum wage and breaches of the Working Time Regulations 1998. One woman had been awarded £89,683 in damages, including £25,000 for injury to her feelings and £5,000 by way of aggravated damages. The other had received an award of £33,228.