Caroline Maguire, employment legal adviser at Law Centre (NI), writes on access to justice for victims of labour exploitation in the wake of an important UKSC decision.

In June 2016, the UK Supreme Court handed down its decision in the case of Taiwo v Olaigbe and another - UKSC 31. This judgement confirmed the need for a broader remit for employment tribunals to compensate victims of modern slavery.

The cases

The joined appeals concerned the cases of two migrant domestic workers, Ms Taiwo and Ms Onu, who suffered severe mistreatment by their respective employers.

Ms Taiwo and Ms Onu were Nigerian nationals who were lawfully brought to the UK by their employers on migrant domestic workers visas. Both had their passports taken away from them on arrival and made to work long underpaid hours.

Ms Taiwo was underfed and subjected to physical and mental abuse by her employers, while MsOnu was threatened and abused.

Both had successfully brought claims to the Employment Tribunal for breaches of the National Minimum Wage Act 1998 and the Working Time Regulations 1998. However, both had ultimately failed in claims for race discrimination on the grounds that immigration status was not to be equated with nationality for the purpose of the Race Relations Act 1976 and Equality Act 2010.

The Court of Appeal held that “discrimination on a particular ground will only be treated as discrimination on the grounds of a protected characteristic if that ground and the protected characteristic exactly correspond”.

On appeal to the Supreme Court, counsel had argued that Ms Taiwo and Ms Onu had suffered direct discrimination on grounds of nationality.

The Supreme Court decision

The Supreme Court found that both employees “…were treated disgracefully, in a way which employees who did not share their vulnerable immigration status would not have been treated”.

However, the Court dismissed both appeals and held that Ms Taiwo and Ms Onu had not suffered race discrimination because the reason for their abuse had been their vulnerability as a particular kind of migrant worker and not nationality.

In both cases, the employees were held to be particularly vulnerable because they were on visas that made them dependent on their employers for a continued right to live and work in the UK. The Court held that other non-British nationals who had the right to work and live in the UK, independent of any employer,would not have been treated as badly as they were. Thus the Court held that discrimination on grounds of immigration status does not amount to direct discrimination on grounds of nationality under the Acts. The Court was careful to clarify that while no indirect discrimination argument existed in the present case, it should not be ruled out in other cases involving exploitation of migrant workers.

The need to provide meaningful redress for victims

Many practitioners who represent workers exploited through modern slavery will be disappointed but not surprised by this ruling.

The decision is not impervious to criticism; in particular, it could be argued that it takes no account of discrimination against a sub-group of a protected characteristic.

However, it does confirm that some race discrimination claims involving labour exploitation may be difficult to prove and certainly require very careful pleading. In both Taiwo and Onu the exploitation involved a sole individual. Where a group of workers of the same nationality (for example) are exploited, there may be stronger evidence that the exploitation was on racial grounds.

Race discrimination is a potentially important avenue of redress for migrant workers who have been exploited as it allows a worker to be compensated for the injury to feelings s/he has suffered as a result of the discrimination. Only a discrimination claim before an Industrial Tribunal affords an injury to feelings remedy. In the above cases, although it was recognised that Ms Taiwo and Ms Onu had suffered “grievous harms”, no compensation for the mistreatment per se could be awarded. Only compensation arising from loss of wages and other economic loss was payable.

The Industrial Tribunal should be the ideal forum to hear claims involving modern slavery. However, this decision highlights the difficulty workers can face in recovering just compensation for their exploitation from an Industrial Tribunal. Lady Hale recognised this unsatisfactory situation in her final comments when she stated:

“Parliament may well wish to address its mind to whether the remedy provided by section 8 of the Modern Slavery Act 2015 is too restrictive in its scope and whether an employment tribunal should have jurisdiction to grant some recompense for the ill-treatment meted out to workers such as these…”

The Law Centre and other bodies representing workers exploited through modern slavery, such as FLEX, have expressed concerns that such workers are still not obtaining adequate compensation for the mistreatment they endure.

Lady Hale’s comments should now be carefully considered by the Department for the Economy, ensuring that labour justice is accessible to all workers in Northern Ireland, including access to meaningful compensation for victims of modern slavery.