Law guide: Workplace

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Racial discrimination

Racial discrimination

Contents

Racial discrimination

The Race Relations (Northern Ireland) Order 1997 (RRO) makes it unlawful for an employer to discriminate against you on racial grounds. Racial grounds include:

  • Race
  • Colour
  • Nationality
  • Ethnic or national origins
  • Belonging to the Irish Traveller Community

Under the RRO, it doesn't matter if the discrimination is done on purpose or not. What counts is whether you're treated less favourably than someone else because of your race.

The RRO protects all racial groups. A racial group means any group defined by reference to race, colour, nationality, or national or ethnic origins and includes Irish Travellers.

Who and what is covered?

Employees under a contract of service or apprenticeship are covered.

Contract workers will be covered against any actions of the principal (i.e. the person requiring the work to be done) amounting to racial discrimination, if:

  • They are supplied by the employer to the principal under a contract between their employer and the principal, and
  • The principal has a position of influence and control over the working environment of the contract worker.

A contract worker may also be covered even if the principal doesn't have a position of influence and control over the working environment, but each case will turn on their own specific facts. You should seek advice from a specialist solicitor in these circumstances.

The laws against racial discrimination at work cover every part of employment. This includes recruitment, terms and conditions of employment, pay and benefits, status, training, promotion and transfer opportunities, as well as redundancy, dismissal and non-renewal of a fixed term contract. So if you applied for a job and you feel you did not get it on the basis of your race, you could make a claim to an Industrial Tribunal.

Exceptions

The law allows a job to be restricted to people of a particular racial or ethnic group where there is a 'genuine occupational requirement' for the employee to belong to that group. An example would be where a black actor is needed for a film or television programme.

What are the types of discrimination?

Direct racial discrimination

This is where you are treated less favourably than another employee because of your race, when compared with another worker of a different racial group, but whom otherwise shares the same or similar (but not materially different) circumstances as you (known as a 'comparator').

The comparator's circumstances do not need to be identical to yours (in terms of the type of job, job level, job experience and seniority, etc.), but must not be wholly dissimilar. If you cannot find a suitable comparator, then a 'hypothetical comparator' can be used instead, who would be deemed to have the same employment as you (such as your title, role, level etc). An Industrial Tribunal has the power to decide the particular circumstances of a hypothetical comparator (such as their personality).

The law also extends to protecting you if your employer treats you less favourably based on:

  • Their perception of your race, regardless of whether or not the perception is correct. For example: you are refused a promotion because your employer perceives you to belong to a particular race. Your colleague is promoted, and his/her circumstances are similar to yours, except that your employer doesn't have the same perception about their race. This might be a case of direct race discrimination.
  • The race of another person (also known as discrimination by association). One such instance would involve you being treated less favourably because you live with someone of another race. Another would be if you were dismissed after refusing to comply with instructions that required you to discriminate against someone because of their race (e.g. if you had been instructed not to serve any customers of Asian origin).

Your employer could be liable for a direct discrimination claim even if there was no intention to discriminate against you.

Your employer can't defend a claim of direct race discrimination by 'justifying' it (arguing that their actions were a proportionate means of achieving a legitimate aim). Usually, the only available defence to a direct discrimination claim is proving that there was no discrimination.

There is, however, an exception whereby direct discrimination is allowed in circumstances where it is required, in order to comply with another law or a genuine occupational requirement of the role. For example, a dramatic performance or other form of entertainment that requires a person from a particular racial group for authenticity.

Indirect racial discrimination

There are two kinds of indirect racial discrimination:

  • Discrimination on the basis of race, ethnicity and national origins.
  • Discrimination on the basis of colour or nationality.

The two kinds of discrimination have slightly different legal tests, both of which we discuss below. The most important difference is that claims relying on the basis of colour or nationality have an additional element that requires you to prove proportional discrimination.

Race, ethnicity or national origins

Indirect racial discrimination on the basis of race, ethnicity and national origins, occurs where a formal or informal working practice, provision or criteria that your employer applies equally to all the workers, puts a group of workers who share the same race, ethnic or national origin at a particular disadvantage when compared with other workers. It does not matter whether or not this has been done intentionally. For example, if your employer introduced a dress code applying to all employees and that dress code resulted in employees of your ethnic group suffering a particular disadvantage, this might be a case of indirect racial discrimination.

Your employer can defend against indirect discrimination claims by justifying the use of the unlawful practice, provisions or criteria, if it can show that its application is a proportionate means of achieving a legitimate aim.

Colour or nationality

Indirect racial discrimination on the basis of colour or nationality occurs when your employer applies a condition or requirement to all its employees, with the result that:

  • A considerably smaller proportion of workers of a particular colour or nationality can comply with the condition or requirement, when compared with those workers who are not of their colour or nationality
  • It has caused the workers of that particular colour or nationality to suffer a detriment
  • The employer cannot justify the use of the condition or requirement, by showing it to be a proportionate means of achieving a legitimate aim.

For example, if your employer decides that only employees who do not require work permits may go on managerial training courses and you are a non-EEA national who requires a work permit, this might be indirect race discrimination on the basis of your nationality. This is because the proportion of non-EEA nationals that can comply with this requirement is considerably smaller than the proportion of EEA nationals that can.

Harassment

There are two kinds of racial harassment:

  • Harassment on the basis of race, ethnicity and national origins
  • Harassment on the basis of colour or nationality

Harassment on the basis of race, ethnicity and national origins occurs where another worker, or your employer, violates your dignity or creates an intimidating, hostile, humiliating, degrading or offensive environment through unwanted conduct on the basis of race, ethnicity or national origin.

Claims of harassment based on a workers colour or nationality are generally harder to prove as you must show that you have been harassed (as defined above) and that you have also suffered some sort of disadvantage as a result of the unwanted conduct.

If it is reasonable that the unwanted conduct has had an intimidating or humiliating effect on you, then you may have a harassment claim against your employer (even where someone didn't intend harassing you).

Note that you will not be protected by the RRO if you are over sensitive and unreasonably take offence to an innocent comment.

Employers will be liable for any harassment suffered in the course of employment if they fail to take reasonable steps to prevent it. Employers can't defend against harassment claims on the grounds that the actions were reasonable or warranted.

Examples of harassment would be participating in, allowing or encouraging behaviour that offends someone or creates a hostile atmosphere, such as making racist jokes at work.

Victimisation

Victimisation is where you are treated less favourably than another employee because:

  • You have asserted your rights under the RRO not to be discriminated against
  • You have given evidence or information in a complaint under the RRO
  • You have done anything else under the RRO
  • You have alleged that your employer or another worker has contravened the RRO

Your employer knows that you intended to do or suspects that you have done or intend to do any of these things.

For example, you might have a victimisation claim if you are prevented from going on training courses; or unfair disciplinary action is taken against you; or you are excluded from company social events; while comparable employees who did not take the action you did are not subjected to this less favourable treatment.

Employers who don't stop discrimination, harassment and bullying by their employees may be breaking the law.

What is 'positive action'?

Positive action is where employers provide support or encouragement to a particular racial group. It is only allowed where a specific racial group is badly under-represented among those doing particular work or filling particular posts in an employer's workforce. Employers are allowed to provide special training to members of the racial group. They can also encourage members of the racial group to apply to do the work or fill the posts (for example, by saying that applications from them will be particularly welcome).This does not mean that employers can discriminate in favour of the members of the group when it comes to choosing people to do the work or fill the posts, as that could be unlawful discrimination.

Positive action is not the same as 'positive discrimination', which is where members of a particular racial group are treated more favourably regardless of their circumstances. Positive discrimination is unlawful.

What to do next?

If you feel that another employee or a member of management other than your immediate boss is discriminating against you because of your race, talk to your employer and explain your concerns. Your employee representative (such as a trade union official) – if you have one – may also be able to help.

If your line manager or supervisor is discriminating against you, you should talk to their supervisor or to the company's HR department.

Many employers have an equal opportunities policy, and you should ask to see a copy of this.

You should also talk to your employer if you're told to act in a way that you think discriminates – for example, if you're told to treat someone differently because of their race, colour, nationality, ethnicity or national origins.

If your employer doesn't want to help, you may need to make a complaint using your employer's grievance procedure. For more information, see our article on Grievance procedures in Northern Ireland. If your employer does not have a grievance procedure, you should set out your complaint in a letter and hand it to your line manager. If your line manager is the problem, then hand the letter to your HR manager or your line manager's supervisor. Your employer should then arrange a grievance meeting with you. If the outcome of the meeting is unsatisfactory, you have the right to appeal to a manager who was not previously involved in your grievance.

If you're still unhappy, you can apply to an Industrial Tribunal. Prior to taking this step you should obtain legal advice. You must lodge your claim within three months of the act of discrimination taking place. If the discrimination extends over a period of time, you must bring your claim within 3 months from the end of that period.

Further information

You can get more information from the Labour Relations Agency (LRA) which offers free, confidential and impartial advice on all employment rights issues. The Equality Commission for Northern Ireland can help with advice regarding discrimination and equal opportunities.