Taiwo v Olaigbe and Another: EAT 5 Mar 2013

EAT Race Discrimination Direct
A Tribunal dismissed claims by a Nigerian it found to have been mistreated when she worked for the Respondents as a domestic worker (a migrant domestic worker visa having been obtained to permit her to do so) that her mistreatment constituted either direct or indirect discrimination. On appeal, her argument that she was mistreated because she was on a migrant worker visa, and that this was indissociably linked with her race or national origin so as to be direct discrimination, was rejected: the tribunal had found that she was mistreated not because of her race but because of her vulnerability. Although being a migrant worker was part of the background to that vulnerability, it was not itself a reason for the mistreatment. There was no other basis for the claim of direct discrimination. However, the tribunal had not approached indirect discrimination correctly, since it had not identified the PCP it thought may have been applied; and the conclusion (that there was no such discrimination) was not plainly and obviously right. The PCP contended for on appeal (the practice of mistreating those on a migrant domestic worker visa) was rejected, since it assumed that which it sought to prove, or showed no comparative disadvantage; and a PCP of employing those on a migrant domestic worker visa would not suffice either. Although the Appeal Tribunal was just persuaded that the group (those who worked under a domestic migrant worker visa) arguably contained disproportionately more of those who would be disadvantaged because of their vulnerability than would those who were not working on such a visa, this was no basis for remission in this case in which no tenable PCP had been proposed or argued below.
On a second appeal, the claimant challenged a decision by the Tribunal to refuse costs on the basis that the rule required her to have incurred costs personally, whereas they had been borne by the Law Centre, funded in part by the Legal services Commission. It had relied on Walsall Borough Council v Sidhu [1980] ICR 519. Held, allowing the appeal, that the rule had changed and as a matter of construction permitted a claim for costs where they had been incurred by another on behalf of the party claiming costs.

Langstaff P J
[2013] UKEAT 0254 – 12 – 0503
England and Wales
CitedWalsall Borough Council v Sidhu EAT 1980
EAT The appellant Council had withdrawn its appeal at the last moment. The successful individual respondent in the Employment Appeal Tribunal, had been given assistance by the CRE, and had herself incurred no . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Costs

Updated: 10 November 2021; Ref: scu.471566