Thursday 7 March 2013

Unfavourable Treatment on Grounds of Vulnerability

[Thanks to Sian McKinley of Cloisters for preparing this case summary]
Does unfavourable treatment on the grounds of vulnerability for reasons including immigration status constitute race discrimination?

No, says the EAT in Taiwo v Olaigbe, because the vulnerability of foreign national domestic workers is not indissociably linked with migrant status.

The Claimant, a Nigerian woman, worked as a domestic worker in the home of the Respondents between February 2010 and January 2011. Upon her departure, she was assisted by North Kensington Law Centre in bringing a number of claims, including a claim for direct, or alternatively, indirect race discrimination.

The employment tribunal made a finding of fact (which was not appealed) that the Claimant had been treated in an appalling manner by the Respondents and upheld nearly all of the Claimant's claims. However, the tribunal held that the treatment she had suffered did not amount to direct or indirect race discrimination. The tribunal dismissed these claims and the Claimant appealed.

The EAT upheld the decision of the tribunal and held that unfavourable treatment of the employee did not constitute direct or indirect race discrimination. This was even though the tribunal had found that such treatment was strongly associated with her vulnerability caused by her lack of English and dependence on her employer for her right to stay in the UK.  The presence of other factors which caused her vulnerability (such as low socio-economic status and the imbalance of power in the relationship between the Claimant and the Respondents) meant that the factual cause of the unfavourable treatment of the claimant was not indissociably linked to immigration status.

The EAT rejected the indirect race discrimination claim on the basis that in this case there was no appropriate provision, criteria or practice (PCP) which put the Claimant (and her racial group) at a substantial disadvantage. Mistreatment could not amount to a PCP.

Permission to appeal is currently being sought by the Claimant.

Importantly, the EAT also held that legal costs can be recovered by a third party who is funding litigation, even though the party themselves is not incurring the cost. North Kensington Law Centre was able to assist the Claimant without charging her by funding from the Legal Services Commission. The costs incurred by North Kensington Law Centre were to be treated as costs incurred by the Claimant for the purposes of a costs application.

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