Is exploitation discrimination?
A recent Employment Appeal Tribunal judgment, Nikolova v M & P Enterprises London, considered whether an employee can claim race discrimination when they have been exploited because of their poor economic position and immigration status. The judgment held that an exploitative employer is not necessarily an employer who discriminates against his employees. The Employment Appeal Tribunal was satisfied that the two actions should be differentiated. The case concerned a Bulgarian employee, Ms Nikolova, who worked in the Respondent’s hotel as a maid/cleaner from July 2013 until March 2014. She had poor ability to speak English and could not have meaningful conversation with her employer. She was paid £200 per week for 48 hours of work, which equalled £4.16 per hour – a figure significantly less than the National Minimum Wage which was £6.19 at the start of her employment and had increased to £6.31 in the midst of it. She enquired about a pay rise, which led to her dismissal. The Employment Tribunal held that Nikolova had been unfairly dismissed because she had asserted a statutory right, namely the right to receive the National Minimum Wage. The ET also ruled in her favour for her claims of unlawful deductions from wages, holiday pay, wrongful dismissal and others. However, it dismissed Nikolova’s claim that she was discriminated against because of her race. The Tribunal held that the employer was one who would take advantage of whomever would accept a wage less than the national minimum. The Employment Appeal Tribunal upheld the ET judgment and agreed that the employer did not discriminate because of race. The ET had carefully analysed the evidence and on the findings it was entitled to make the conclusion it did. The ET was satisfied that the employer would have exploited any vulnerable employee in the same way it exploited Ms Nikolova, regardless of the reason why the employee was vulnerable, be it poor knowledge of English, poor knowledge of employment rights, low levels of skills, irregular immigration status or any other characteristic which might make an employee vulnerable.