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discriminated against because of his disability. The claimant worked for an independent brokerage and research firm. He had opted out of the 48-hour working week. He was involved in a serious car accident and as a result he began suffering from dizziness, fatigue, headaches and difficulty concentrating. These symptoms became more severe in the evenings if he worked late and the respondent was aware this. In the first six months after the claimant returned to work his working day reduced to eight hours. After that he began working longer again: from 8a.m. until 7p.m. Working late hours was expected and necessary as the firm dealt with US markets affected by time zone difference. The claimant complained to the respondent that he was forced to work “unsuitable hours”. The respondent had not requested or been provided with any medical records; however, he had left the claimant to work late only when he thought he was able to. In fact, in October 2013, the claimant began requesting to work until 9p.m. This was demonstrated when the respondent began asking which nights the claimant was working late, rather than if he is willing to work late on any days. In February 2014, the claimant complained in an email about the long hours he worked. During a heated discussion, the owner, Mr Mardel, raised his voice and told the claimant that he could leave if he didn’t like his job. No attempts were made to mend the working relationship and the claimant resigned because, among other reasons, he claimed Mr Mardel’s behaviour was abusive, unacceptable and intimidating. The claimant made a claim to ET that he had been constructively dismissed, and he also claimed disability discrimination. The ET was satisfied that the claimant was a disabled person within the meaning of the Equality Act 2010 and that the respondent was aware of that; however, it dismissed the claims of disability discrimination and constructive unfair dismissal because Carreras had not been forced to work late. An expectation that he would work late was not a provision, criterion or practice (PCP)
for direct and indirect race discrimination were dismissed on the grounds that the employers exploited Ms Taiwo not because she was Nigerian, but because of her instable and vulnerable immigration status. In the second case, Onu v Akwiwu, the claimant worked for Mr and Mrs Akwiwu in Nigeria and arrived in the UK in July 2008. She escaped in June 2010 when she walked eight miles to the home of a Jehovah’s Witness, as she did not have money to pay for transport. At an ET she was awarded compensation of £86,000 for unfair constructive dismissal, failure to provide a contract, holiday pay, rest breaks, unpaid wages, injury to feelings and aggravated damage. Her claim for direct discrimination on the grounds of race succeeded; however, the employers appealed in that respect and the EAT upheld the appeal, ruling that the discrimination was not related to the claimant’s race, but to her “subordinate position and the relative economic benefits of her work in the United Kingdom compared with the poverty of her situation in Nigeria.” Both cases were then appealed and heard together by the Court of Appeal. The claim for direct discrimination failed as the court held that immigration status could not be interpreted as an equivalent to nationality for the purposes of the relevant Race Relations Act 1976 and Equality Act 2010. In relation to the indirect discrimination claim due to a PCP, the court held that mistreating domestic migrant workers was not a PCP, so the indirect discrimination claim was dismissed. The cases then escalated to the Supreme Court (SC) where a ruling was reached that neither of the claimants suffered direct race discrimination as they were not mistreated because of their nationality, but because of their vulnerability as a migrant worker. The SC commented that there are many non-British nationals working in the UK who are not in the same vulnerable position and are not subjected to the same abuse. Secondly, the SC also held that there was no indirect discrimination as there was no PCP which the employers applied universally to all their employees which adversely affected employees with the same immigration status as the claimants. n
which required him to do so. The EAT held that the ET had taken too narrow an approach. It concluded that a ‘requirement’ can come under ‘practice’. Although a simple request cannot be a PCP, the respondents had gone beyond a request – there was an expectation and an assumption that he would work late which put him at a disadvantage. His claim of disability discrimination was therefore successful. Taiwo v Olaigbe and another & Onu v Akwiwu and another The Supreme Court has decided, in two cases heard together because of their similar facts, that two individuals had not suffered race discrimination when they had been treated less favourably because of their vulnerable migrant status. The claimants in both cases were of Nigerian nationality. Both respondents provided false evidence about the claimants’ work history in order to obtain a migrant domestic worker’s visa. Both respondents withheld the claimants’ passports upon arrival in the UK. Ms Onu was even threatened that if she left or ran away that the police would be alerted and she would be arrested and put in prison. Both workers cared for the respondents’ children and completed domestic work. They were expected to be on duty during all hours they were awake; in Ms Onu’s case that was on average 84 hours a week. Neither Ms Taiwo nor Ms Onu were given a contract, rest breaks, annual leave, nor paid the national minimum wage. In the first case, Taiwo v Olaigbe, the claimant moved to the UK in February 2010 to work in Mr and Mrs Olaigbe’s home. Although she was paid £200 a month for April, May, June and then £300 for August 2010, she had to return £800 to her employers. Ms Taiwo suffered physical and verbal abuse: she was slapped, spat at and mocked. She escaped her employers in January 2011 with the help of a playground worker who helped her get in touch with the authorities. She brought an ET case and was awarded over £33,000 in compensation for failure to pay the national minimum wage, failure to provide a written contract and failure to provide adequate rest periods. Her claims
...the discrimination was not related to the claimant’s race
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Issue 23 | September 2016
| Professional in Payroll, Pensions and Reward |
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