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Race to the front

Race to the front

Most complaints to WRC are racial discrimination

The Employment Equality and Equal Status Acts provide protections from racial discrimination to employees and to non-employees who are accessing goods and services, and place obligations on employers and service providers.

The issue of racism is highly topical now. The Workplace Relations Commission (WRC) 2019 annual report recently noted that discrimination on grounds of race under the Equal Status Acts 2000-2018 is still the most frequent complaint submitted of the nine discriminatory grounds.

The number of overall complaints submitted under these acts decreased by 25% in 2019 compared with 2018. This raises a question about the level of awareness in Irish society of the panoply of rights for those discriminated against, and also for those wishing to oppose racism practised by others.

Accordingly, the WRC has pledged to commence a 2020 awareness-raising campaign.

Race to the front

Race to the front

As practitioners will be aware, Irish law is interpreted in line with EU law. This creates a level playing field across member states. The Employment Equality Acts 1998-2015 (EEA) and the Equal Status Acts 2000-2018 (ESA) are to be understood against the backdrop of the EU Race Directive.

The directive (2000/43/EC) is not a complete body of rights and contains basic prohibitions on discrimination on grounds of race or ethnic origin. It has since been interpreted by the CJEU to give strong protection against discrimination, including that imposed because of third-party concerns.

The 2008 ECJ case of Firma Feryn NV (Case C–54/07) arose from the refusal of a company in the Netherlands specialising in garage-door installation to employ persons of ethnic origin.

When challenged, the company stated that their policy was due to their customers’ reluctance to give such employees access to their homes.

The court rejected the argument of the company and held that their actions constituted direct discrimination in relation to recruitment under the directive.

What employers and service providers can learn from this is that there is a powerful tool to push back against racism being imposed on them by customers, clients, third parties or any outside agents – the employer or service provider themselves will be held directly liable for race discrimination. It is important to be cognisant of this responsibility.

Meaning of ‘race’

It is extremely important to be aware that the reach of Irish law is significantly broader than the Race Directive. The directive expressly provides that it does not cover “difference of treatment based on nationality”, and this is expressly covered in Irish law.

The directive does not attempt to define ‘race’, ‘colour’ or ‘ethnic origins’, and leaves it up to member states to define these terms.

As such, the Labour Court has frequently adopted the definition of race from British case law.

In Mandla (Sewa Singh) v Dowell Lee (1983), the House of Lords held that ‘ethnic’ – which it held was associated with a cultural and historical background – was wider than ‘racial’ (which constituted a biological element).

The Labour Court, in Dublin Institute of Technology v Awojuola (EDA 35/2013), adopted the definition set out in Mandla and held that persons of the European Union did not have the characteristics of a racial group.

Discrimination in Irish law

The Employment Equality Act prohibits discrimination under nine grounds, one of which is race. Employers may not discriminate against employees or potential employees with regard to access to employment, conditions of employment, work experience, and promotion. It is perhaps less well-known that the EEA also prohibits:

  • Discrimination in collective agreements with regard to access to and conditions of employment and equal pay for like work,
  • Discriminatory advertising,
  • Discrimination by employment agencies,
  • Discrimination in the provision of vocational training, and
  • Discrimination by trade unions, professional, and trade associations as regards membership and other benefits.

The Equal Status Act prohibits such discrimination in the access to goods and the provision of services, including housing and education.

The ESA prohibits discrimination in the provision of accommodation services against people who are in receipt of rent supplement, housing assistance, or social-welfare payments. Discriminatory advertising is also prohibited.

Both acts provide that discrimination on grounds of race occurs where, as between two persons, the discriminatory grounds are “that they are of different race, colour, nationality or ethnic or national origins” (section 6(2)(h) of the EEA; section 3(2)(h) of the ESA).

Discrimination has a specific meaning in equality law. The definition of discrimination focuses on whether a person has been treated less favourably in the workplace than another person in a similar situation on any of the nine grounds, including race.

Indirect discrimination

Discrimination can be direct or indirect. While direct discrimination is often more obvious, indirect discrimination has a negative impact on employers or persons accessing goods and services.

Indirect discrimination may occur if an organisation’s policy or practice, which is applied to all persons, has the effect of putting an employee or someone attempting to avail of a good or service at a disadvantage because of their race or ethnic origin.

For example, if an employer requests three references from Irish employers, this could indirectly discriminate against an immigrant (Czerski v Ice Group). Or if employers furnish documentation, including contracts of employment and policies in English only, rather than in a language that is understandable to all employees (Complainants v Goode Concrete Ltd).

Objective justification

If a complainant satisfies a prima facie case of discrimination, the burden shifts to a respondent to demonstrate that the discrimination is objectively justified by a legitimate aim, and that the means of achieving that aim were appropriate and necessary.

The burden on a respondent to objectively justify such treatment is onerous.

In A (on behalf of her daughter B) v A Girls Secondary School, the Equality Tribunal, as it then was, stressed the importance of providing evidence of objective justification.

Although the respondent succeeded in convincing the tribunal that their policies were legitimate, it failed to provide evidence demonstrating necessity.

Although burdensome, objective justification is not an impossible task. In Turner v Basketball Ireland, a professional basketball player alleged discrimination on grounds of race within the league.

The WRC found that, although the complainant had established a prima facie case of discrimination on grounds of race, the respondent had objectively justified the difference in such treatment.

The WRC held that the ESA allows for differences in the treatment of persons based on nationality that are “reasonably necessary, having regard to the nature of the facility or event and are relevant to the purpose of the facility or event”.

Vicarious liability

The EEA makes an employer liable for acts carried out by a person in the course of employment, whether or not an employer knew or consented (section 15). This includes acts by a person acting as agent for another person with express or implied authority.

Employers can defend such claims if it is demonstrated that steps were taken as reasonably practicable to prevent the employee from doing the act in question or from doing it in the course of employment.

Employers should have policies and practices in place prohibiting race discrimination, emphasise to the workforce that it will not be tolerated, and have an effective complaints mechanism.

Dublin Bus v Camley demonstrates how best practices of an employer allowed them to defend against the rogue employee’s actions in insulting another worker on social media.

Service-provider duties

Similar to the EEA, the ESA provides that procurement of discrimination is an offence (section 13) and that service providers are prohibited from publishing or displaying discriminatory advertisements (section 12).

Section 42 of the ESA (also at section 15 of the EEA) relates to vicarious liability, and was examined in 2019 in Irish Human Rights Commission v DAFT.

The respondent’s defence that it was a “mere conduit” and not the author of an online advertisement was rejected by the WRC.

The respondent was held vicariously liable for the content on its online platform and was ordered to cease publishing and develop a process to identify, monitor and block discriminatory advertising on its website.

The significant recent decision by the High Court in Smith v Office of the Ombudsman centred on section 5 of the ESA, which prohibits discrimination in the disposal of goods and provision of services. The case arose from a decision of the Legal Aid Board to refuse the appellant a legal-aid certificate.

“The concept of a comparator”

Mr Justice Simons, in dismissing the appeal, applied the following test: “The question for determination upon a claim of racial discrimination – as opposed to, for example, an application for judicial review – is not whether the procedure … is subjectively fair, but rather whether the procedure applied to [the appellant] differed from the approach applied to other complainants generally.”

The court held that the appellant had “misunderstood the concept of a comparator” under the ESA, and held that “the correct comparison is not as between the complainant and the person providing the service, but rather as between the complainant and another service recipient”.

Crucially, the judge held that section 5 is “not a stand-alone provision” and “must be read in conjunction with section 3 (general discrimination) and/or section 4 (discrimination on disability grounds)”.

In Asylum Seeker v Statutory Body (January 2020), the WRC found that the complainant was indirectly discriminated against on grounds of race during her application for a learner driver permit.

The complainant, an asylum seeker, had been refused the permit due to the lack of valid evidence of residency entitlement.

The WRC made various stringent orders, including that the respondent must “immediately amend the 2018 guidelines”.

Criminal offence

It is worth noting that it is a criminal offence for a person to procure or attempt to procure another person to do anything that constitutes discrimination or victimisation (section 13 of ESA).

While there have been no cases to date that we are aware of, this provision should not be overlooked in the heightened awareness of current times.

Indeed, the provision could, in fact, assist an employer put under pressure by a customer or client to send only ‘national’ workers – as in the Firma Freyn case.

The employer could simply remind the customer or client that this is a criminal offence in which the employer does not want to be complicit.

Range of legal protections

There are a range of legal protections afforded to both employees and non-employees to prevent discrimination on grounds of race.

While legal practitioners will be familiar with prohibitions on overt racism, they can advise their clients on the issues they may be less familiar with regarding obligations on employers and service providers.

Employers and service providers might fail to appreciate the risk of liability for attempts by third parties and ‘rogue’ employees to engage in racism unless they have good policies and training in place.

As the CJEU has made clear, failing to stand up to racist practices of customers may cost a company dearly.

With the increased spotlight on race discrimination, legal practitioners will have an increased requirement to be aware of Irish law on the prohibition of discrimination on grounds of race.