Introduction

The case of Akwiwu & Anor v. Onu ([2013] ICR 1039) was adjudicated by the United Kingdom Employment Appeal Tribunal on May 1, 2013. The core of the dispute revolved around allegations of race discrimination, unfair dismissal, harassment, and victimisation directed at Ms. Onu, a migrant domestic worker from Nigeria employed by Mr. and Mrs. Akwiwu. Ms. Onu contended that she was subjected to exploitative working conditions, including non-payment of the National Minimum Wage, denial of statutory rest and annual leave entitlements, and discriminatory treatment based on her race and migrant status.

Summary of the Judgment

The Employment Tribunal initially ruled in favor of Ms. Onu on several claims, including direct race discrimination and breaches of wage and working time regulations. However, it dismissed claims of indirect discrimination and victimisation. On appeal, Mr. and Mrs. Akwiwu challenged the findings of discrimination, while Ms. Onu cross-appealed against the dismissal of her indirect discrimination and victimisation claims.

The Employment Appeal Tribunal (EAT) scrutinized the legal interpretations applied by the Employment Tribunal, particularly concerning the burden of proof in discrimination cases and the applicability of post-termination victimisation claims under the Equality Act 2010. The EAT concluded that the Employment Tribunal had erred in law by misapplying precedents related to direct discrimination and incorrectly dismissing the victimisation claim. Consequently, the EAT reversed the Tribunal's findings of direct discrimination and upheld the victimisation claim, remanding the case for further remedies.

Analysis

Precedents Cited

The judgment extensively referenced several key cases to underpin its legal reasoning:

• Mehmet v Aduma: Addressed the shifting of the burden of proof in discrimination cases involving migrant workers.
• Igen v Wong and Madarassy v Nomura International Plc: Explored the nuances of direct and indirect discrimination, emphasizing the need for substantial evidence linking discrimination to protected characteristics.
• Rhys-Harper v Relaxion Group: Clarified the interpretation of "employer" and "employee" in discrimination statutes, extending protections to post-termination relationships.
• Rowstock Ltd & Davis v Jessemey: Highlighted the necessity of aligning domestic statutory interpretations with European Union directives.

These precedents were pivotal in assessing whether the Employment Tribunal had correctly applied the law concerning direct discrimination and victimisation.

Legal Reasoning

The EAT's legal reasoning focused on two primary areas: the application of the National Minimum Wage Regulations and the assessment of discrimination claims.

• National Minimum Wage Regulations: The Tribunal had considered whether Ms. Onu fell under the "family exemption," which would exclude her from Minimum Wage protections. It concluded that the exemption did not apply as she was not treated as a family member in terms of shared meals and equitable distribution of tasks.
• Direct Discrimination: The Tribunal relied on the Mehmet v Aduma precedent to shift the burden of proof to the employers, Mr. and Mrs. Akwiwu. However, the EAT identified that Mehmet was misapplied, as the case did not align with the peculiarity of Akwiwu v. Onu, which was a "reason for" discrimination case rather than a "criterion" case.
• Victimisation: The Tribunal had deemed the victimisation claim unsubstantiated due to perceived imprecision in the evidence. The EAT disagreed, asserting that the context of the threats made by Mr. Akwiwu indicated a retaliatory motive linked to Ms. Onu's protected act of filing discrimination claims.

The EAT emphasized the importance of correctly interpreting the Equality Act 2010, especially regarding post-termination victimisation, and ensuring that legal precedents are appropriately applied.

Impact

This judgment apportions significant implications for employment law, particularly in the realm of migrant workers and post-termination victimisation:

• Clarification on Victimisation: Affirming that victimisation claims remain actionable even after the termination of employment, provided they are connected to protected acts, reinforces protections for employees and ex-employees alike.
• Burden of Proof in Discrimination: The decision underscores the necessity for Tribunals to meticulously assess whether the circumstances align with precedents like Igen v Wong and Madarassy v Nomura, ensuring that the burden of proof is reasonably allocated.
• Interpretation of Protected Characteristics: By emphasizing a purposive approach to the Equality Act, particularly regarding the integration of migrant status and race, the judgment fosters a more nuanced understanding of discrimination beyond surface-level attributes.
• Alignment with EU Directives: Reinforcing compatibility with European Union directives ensures that UK employment law remains robust and comprehensive in protecting against discriminatory practices.

Complex Concepts Simplified

Direct vs. Indirect Discrimination

Direct Discrimination: Occurs when an individual is treated less favorably explicitly because of a protected characteristic, such as race. In this case, if Ms. Onu was treated unfairly solely based on her Nigerian nationality, it constitutes direct discrimination.

Indirect Discrimination: Involves policies or practices that apply to everyone but disproportionately disadvantage individuals with a particular protected characteristic. Ms. Onu's claim for indirect discrimination was initially dismissed.

Victimisation

Victimisation refers to treating someone badly because they have made a complaint or taken action related to discrimination. Here, Ms. Onu alleged that after filing discrimination claims, she was subjected to threats and retaliatory actions, which the Tribunal initially dismissed but the EAT later upheld.

Protected Characteristic

A protected characteristic is a trait or attribute that is legally protected against discrimination, such as race, gender, disability, etc., under the Equality Act 2010. Ms. Onu's race and migrant status are pertinent protected characteristics in this case.

Burden of Proof

The burden of proof determines which party must present evidence to support their claims. In discrimination cases, proving that the treatment was based on a protected characteristic often shifts the burden to the employer to provide a non-discriminatory explanation.

Post-Termination Victimisation

This concept refers to acts of retaliation against an employee after the employment relationship has ended, solely because they engaged in protected acts like making discrimination complaints. The judgment affirmed that such victimisation is actionable under the Equality Act 2010.

Conclusion

The Akwiwu & Anor v. Onu judgment marks a pivotal moment in UK employment law by reinforcing the protections against post-termination victimisation under the Equality Act 2010. By overturning the Employment Tribunal's findings on direct discrimination and upholding the victimisation claim, the EAT underscored the necessity for meticulous legal interpretations aligned with established precedents and EU directives. This decision not only safeguards the rights of migrant workers but also sets a robust framework for addressing complex discrimination and retaliation cases in the future. Employers must now exercise greater diligence to ensure compliance with anti-discrimination laws, particularly concerning the treatment of employees based on protected characteristics and in the context of exit procedures.

Furthermore, the judgment emphasizes the importance of accurately applying legal precedents and interpreting statutory provisions in a manner that upholds the spirit and letter of anti-discrimination laws. As a result, businesses and legal practitioners must remain vigilant in their understanding and implementation of these protections to foster fair and equitable workplaces.