Did Byron Burger unlawfully discriminate against employees in Home Office sting?

The raid

On the morning of 4 July 2016, kitchen staff at a number of Byron Burger in London attended a meeting called by management that was apparently to do with food safety and the dangers of cooking medium-rare burgers only for immigration enforcement officers to bust-in, detain and interrogate 35 persons suspected to be illegal migrants with no permission to work.

It all has the appearance of a carefully planned operation. In response, protestors have released live cockroaches and locusts into a number of the restaurants and the #boycottbyron hashtag is doing the rounds on twitter.

The Home Office deny that Byron Burger were aware that they were employing illegal migrants. The restaurant chain has said that it cooperated with the investigation and “acted upon the Home Office’s requests”.

Welcome to Theresa May’s Britain. Where landlords, bank managers, the DVLA and now even burger joints are expected to become second-hand immigration enforcers.

While the Home Office is protected against the duty to promote equality in the exercise of its immigration functions [1], employers acting on Home Office requests do not have any such exemption.

The risks

While employers face civil penalties for each illegal migrant that they employs, they should act with considerable caution and fairness when it comes to compliance with immigration enforcement requests against their employees or workers.

Get it wrong, and there’s no defence to claims for direct discrimination and harassment, for example. Theoretically, employers can be liable for unlimited compensation. This is all in addition to the inevitable public relations fallout of being (or being perceived to be) complicit in controversial immigration policies.

The available government guidance highlights the importance of treating all employees fairly, not making assumptions about a person’s nationality and avoiding blanket policies that affect a particular nationality or category. That is all well and good, but the guidance is silent on how employers should balance their obligations during sting operations.

The remedies

The law in this area is evolving.

Vulnerable migrants workers who are seeking protection from workplace exploitation may rely on the path-breaking case of Hounga v Allen [2014] UKSC 47 which established that certain illegal workers may bring  discrimination claims if they are abused or ill-treated, where it would be inconsistent with the UK’s international obligations for Courts to bar their claims due to the illegal nature of the underlying employment contracts.

However, the Supreme Court recently gave judgment in Taiwo v Olaigbe and another [2016] UKSC 31, which has substantially restricted the scope for discrimination claims based on a person’s immigration status.

Taiwo concerned 2 domestic workers who were exploited, abused and paid poverty wages by the families they worked for. The question for the Court was whether discrimination on the grounds of immigration status amounted to discrimination on the basis of ‘nationality’ for the purposes of the Equality Act 2010 (see § 14).

The short answer is ‘no’.

Equality law is very specific about who should benefit from its protection. While discrimination because of a person’s ‘nationality’ is unlawful, that protection does not extend to the wide variety of immigration statuses a person can have in the UK (see §§ 21 to 26). Extending the safeguards against discrimination to include immigration status would require considerable re-writing of the law (a stretch in post-Brexit Britain). The Court was not persuaded to adopt the flexibility seen in other areas of law (for example, in criminal proceedings, where calling persons ‘bloody foreigners’ may make an assault racially aggravated).

The upshot

Provided that an employer treats individuals fairly, follows what little government guidance is available and ensures that their actions during enforcement investigations are not targeted at particular nationalities, they are unlikely to be liable for unlawful discrimination by complying with genuine Home Office operations.

Although the facts remain unclear, Byron Burger appears to have rounded up all kitchen staff rather than single out particular nationalities or groups.

However, employers should note that there is a thin line between nationality and immigration status. A single xenophobic remark or inappropriate conduct by a manager or staff member involved in an investigation could contaminate the employer’s actions with discriminatory intent and leave them liable to compensate those affected.

In times of increased racial bigotry and with no clear government guidance on an employer’s obligations during sting operations, this risk should be closely monitored at all times.

None of this makes the spectacle of workers being offered up for enforcement action any easier to digest.

Employers remain open to the charge of moral complicity with the Home Office. If enforcement escalates in the coming months and years, we can expect to see more and more companies, landlords and other private organisations come under fire for their role in these controversial policies.

[1] See Schedule 18, paragraph 2 of the EA 2010, also known as the ‘immigration exemption’.