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Direct discrimination and Immigration Status

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Thanks to Barnaby Large of No.18 Barristers Chambers for preparing this case summary

Does mistreatment of a worker on the ground of immigration status constitute direct discrimination?

No, holds the Court of Appeal in Onu v Akwiwu.

Two Nigerian women claimants who came to the country on a migrant domestic worker visas to work for families were found to have been subjected to abuse and exploitation.

Both asserted mistreatment based on immigration status, which was intimately linked to their nationality, and as such direct discrimination.

At the EAT, Langstaff J held mistreatment due to vulnerability as migrant workers was not direct racial discrimination.

The Claimants appealed. Underhill LJ, delivering leading judgment, said the Court had asked itself two questions:-

(1) Can the employment tribunal’s findings truly be that the Claimants’ immigration status constituted ‘grounds’ of their mistreatment (s.1(1)(a) 1976 Act) or as findings their mistreatment was because of their immigration status?

(2) If so, can the Claimants’ immigration status be equated with their nationality?

Answering the first question in the positive but second in the negative, the Court rejected the 'intimately linked' submission. The Court held direct discrimination would only be made out if the ground and the protected characteristic exactly corresponded.