Race discrimination

Introduction

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

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.

Types of discrimination

Direct racial discrimination

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

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

Direct discrimination also extends to protecting a worker if you treat them less favourably based on:

• Your perception of their race, regardless of whether or not the perception is correct. For example, if you refuse to promote an employee because you believe him to belong to a particular race but instead promote another with similar circumstances except that you do not have the same perception about their race
• The race of another person (also known as discrimination by association). Examples include treating an employee less favourably because they live with someone of another race or because you dismissed an employee for refusing to comply with instructions that would require them to discriminate against someone because of their race.

You could be liable for direct discrimination even if you did not intend to discriminate against your employee.

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, or a worker who is not employed as they do not have a legal right to work in the UK.

Indirect race 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 a worker to prove proportional discrimination.

Race, ethnicity or national origins

This will occur where you equally apply a formal or informal provision, criteria or practice to all the workers in the workplace that puts a group of workers who share the same race, ethnic or national origin at a particular disadvantage when compared with other workers, and a worker within that group actually suffers the particular disadvantage.

For example, if you introduce a dress code applying to all employees and that dress code resulted in employees of a particular ethnic group suffering a particular disadvantage, this might be a case of indirect racial discrimination.

You can defend against indirect discrimination claims by justifying the use of the unlawful practice, provisions or criteria, if you 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 will occur where you equally apply a formal or informal provision, criteria or practice to all the workers in the workplace, 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
• You cannot justify the use of the condition or requirement

For example, if you decide that only employees who do not require work permits may go on managerial training courses this might be indirect race discrimination on the basis of nationality against any non-EEA national who requires a work permit. 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 is unwanted conduct towards a worker by an employer or another worker because of that worker's race, ethnicity or national origins. This applies to any conduct that violates a worker's dignity or creates an intimidating, hostile, humiliating, degrading or offensive environment, even if it was not intended as such.

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

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.

If it is reasonable that the unwanted conduct has had an intimidating or humiliating effect on the worker, then you may have a harassment claim made against you (even where the harassment was unintentional). A worker will not be protected if they are over sensitive and unreasonably take offence to an innocent comment.

Employers are liable for any acts of harassment undertaken by their employees in the course of their employment – whether they knew about it or not – if they fail to take reasonable steps to prevent it. 'In the course of employment' means 'done whilst at work' or 'done while 'in a workplace-related environment'. Employers can't defend a claim of harassment by showing that they did not authorise it or on the grounds that the actions were reasonable or warranted.

You can, however, escape liability for harassment, if you took reasonably practicable steps to prevent it.

Victimisation

Victimisation happens when a worker is treated less favourably than another worker because:

• They have asserted their right not to be discriminated against on the basis of their race by making a complaint about race discrimination
• They gave evidence or information in a complaint of race discrimination
• They take any other action under the RRO relating to race discrimination
• They have alleged that you or another worker has contravened race discrimination legislation
• You know that they intended to do or you suspect that they have done or intend to do any of these things

For example, a worker might have grounds for a victimisation claim if they are prevented from going on training courses; subjected to unfair disciplinary action; or excluded from company social events because they took any of the above mentioned actions.

Positive action

Positive action is where you 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 you 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.

Tribunal claims

If you dismiss an employee, or if an employee resigns because they claim that they have been discriminated against by you, then they may make a complaint of unfair dismissal to an Industrial Tribunal. In addition, they may also claim for damages on the grounds of discrimination which they will be able to do regardless of their length of service.

A complaint must be presented within three months from the date of the act complained of, unless the tribunal considers that it is fair and reasonable in the circumstances to hear the claim outside that period.

While there is a limit on the amount of compensation a tribunal can award for unfair dismissal, there is no limit in cases of unlawful discrimination.

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. You can call the LRA helpline. The Equality Commission for Northern Ireland can help with advice regarding discrimination and equal opportunities.