For the second time in as many months, the Employment Appeal Tribunal (EAT) has dismissed a direct discrimination claim brought by a migrant domestic worker against her employer. In this case and an earlier case, the Claimants were Nigerian nationals who had come to the UK on domestic worker visas and both were treated abominably by their employers; they were made to work for very long hours (over 80 hours per week), paid a pittance (£50 per month in one case), had very limited rest periods and were subject to threats and abuse by their employers (passports confiscated, threats of violence when they complained etc). In each case the Employment Tribunal accepted the Claimants’ accounts of the treatment they had experienced.
The Claimants argued that the fact they were treated in this way was because of their status as migrant workers which was inextricably linked to their race/nationality. There was no actual comparator with which to compare their treatment, but it was argued that a hypothetical British worker would not have been treated in this way and that this was therefore unlawful direct discrimination. Although the Claimants succeeded with claims brought under other heads of action (e.g. unfair dismissal, unlawful deduction from wages), they stood to win probably much greater damages from any successful discrimination claim.
However the Employment Appeal Tribunal dismissed their discrimination claims saying that whilst the Claimants’ immigration status and race formed part of the background to the appalling treatment by their employers, the “features which enabled exploitation are not indissociably linked with migrant status”. Instead the EAT found that it was the Claimants’ lowly economic and social status (both came from poor villages in Nigeria) which made them vulnerable to exploitation at the hands of their employers; their precarious immigration status was merely one aspect of this vulnerability. To succeed in their claims, they would have had to show that the discrimination occurred because of their race or immigration status.
The EAT has granted the Claimants’ permission to appeal to the Court of Appeal citing the fact that two Employment Tribunals reached different conclusions on the race discrimination claim on very similar facts and recognising that the issue needs consideration by a higher court. As it stands however, the decision is a blow for the civil rights of domestic workers whose situation in the UK had already become extremely precarious following changes to the Immigration Rules last year which restrict their ability to change employers and limit their visas to 6 months. Early indications suggest that these changes have, as predicted, led to much greater abuse in an already vulnerable sector of the labour market. In its current form, the domestic worker visa is little more than a license to import slaves.
The employment rights of domestic workers without any status is even worse and was made worse still by a decision of the Court of Appeal last year. A discrimination claim brought by a trafficked Nigerian domestic worker against her employer was struck out on the grounds that to allow it would be to condone her own “illegal” conduct which was found to be equal to that of her “employers”. Illegal workers were already barred from bringing any claim which arose from their contract (i.e. most employment claims) due to the doctrine of illegality but this decision effectively bars them from one of the few remedies that was available to them- discrimination claims. The decision is now being appealed to the Supreme Court.
It is to be hoped that the higher courts reverse these conservative rulings which leave domestic workers without many of the protections enjoyed by ordinary workers. It is ironic that such rulings together with the Coalition government’s policy on domestic workers come at a time when the International Labour Organisation (ILO) is trying to persuade governments to ratify its Domestic Workers Convention 2011 which:
“… seeks to close to this gap [lack of employment rights for domestic workers compared to other groups]. Given the highly feminized nature of the sector, the Convention is widely seen as having great potential for achieving greater gender equality in the in the world of work. Providing domestic workers with stronger rights and recognizing them as workers would help to combat gender-based discrimination, and also discrimination on the grounds of race, national extraction or caste that often manifests itself in the sector”
Such laudable and high minded goals seem a very long way from the current reality faced by migrant domestic workers in the UK.