The
burden of proof has been shifted in favour of applicants in the updated
European Race Directive. Rachel Mann reports on the difference between new
legislation on race, ethnic and national origin and the old rules of
discrimination on colour and nationality
K
race discrimination legislation was updated in July to implement the European
Race Directive. Among other things, the changes introduced include a broadening
of the scope of indirect discrimination, a new definition of harassment, a
shift in the burden of proof (in favour of applicants) and an explicit
entitlement to claim post-employment discrimination.
Confusingly,
the changes only apply to discrimination on grounds of race, ethnic and
national origin. The old rules still apply where the race discrimination is on
grounds of colour or nationality. What difference does this make?
–
Are our Muslim employees now protected from anti-Islamic discrimination?
No.
The race discrimination legislation still only covers discrimination on “racial
grounds”, not religious grounds. A few religious groups are protected because
they count as a race for these purposes (eg, Jews and Sikhs). But most
religions, such as Muslims and Christians, are not protected because people with
these faiths do not have one racial or ethnic origin. However, from 2 December 2003 new laws prohibiting discrimination
on grounds of religion or belief will give workers such protection.
–
We are a coffee distributor. Some of our employees have taken to calling one
individual “espresso” (because he has dark skin) and others call him “the Arab”
(he comes from the Middle East). He has asked them to stop and told his line
manager that he does not like these names.
Our manager has told him not to be silly, it is only a nickname and all the lads have one. Might we be
liable?
Yes.
This is likely to amount to racial harassment. A new provision specifically
prohibiting harassment was introduced into the legislation. However, the new
definition only covers discrimination on race, ethnic or national origin
grounds. It does not cover harassment
on grounds of colour or nationality.
The
use of the word ‘espresso’ is unwanted conduct on grounds of colour. To succeed in a harassment claim on this
ground, the employee would need to satisfy the old test, namely that it
amounted to direct discrimination (ie he had been treated less favourably than
other people and had consequently suffered a detriment). This might be harder
for him to prove if all employees are called similar derogatory names.
However,
a claim based on his treatment on grounds of race/ethnic origins (‘the Arab’)
would fall within the new definition of harassment. This might be easier for
him to prove on the basis that it was unwanted conduct that was offensive to
him and assuming it had the purpose or effect of violating his dignity or
creating an intimidating, hostile, degrading, humiliating or offensive
environment.
–
A former employee, a gypsy, was recently dismissed for stealing. He claims he
is innocent, that we did not investigate properly and that it was just a way to
get rid of him. When he told his manager he wanted to appeal against the
decision, the manager said: “No, we don’t want your sort around.” Can we be
forced to hold an appeal?
No,
but he may have a claim for post-employment discrimination. This will depend on
the reason for the refusal to hear the appeal. If your manager meant a thief
when he said “your sort” there was no discrimination. However, if the
ex-employee was refused because of his ethnic origin (gypsy) he will have a
claim even though he is no longer employed, as the discrimination was closely
connected to the employment relationship.
–
One of our employees claims he was prevented from gaining promotion to a higher
grade. He says this was because of a rule that you had to be under the age of
30 to get the job. He is of African origin and recently came to work in the UK
from his home, Nigeria. We have not told him why he was not promoted. Can he
make us reveal the reasons and are we liable?
He
can serve a questionnaire asking for the full reasons for the decision and what
you took into account. If you fail to reply or reply evasively, a tribunal
could draw inference of discrimination.
Imposing
such an age limit may be indirect discrimination either on grounds of
nationality (from Nigeria) or because of race (African). If the former, the
original indirect discrimination test applies – he would be expected to show
statistical evidence that the age limit operated to the detriment of people of
Nigerian origin because many of them did not come to work in the UK until they
had already reached that age.
In
contrast, a claim on grounds of race would involve the new test for indirect
discrimination that would likely be easier for him to satisfy as he might not
have to furnish such detailed statistical evidence. In either case, you would have an opportunity to justify your
actions.
It
may also be easier for the employee to prove discrimination on grounds of race
rather than nationality as a more favourable burden of proof rule applies. Once he has provided evidence that would
indicate discrimination in the absence of an adequate explanation from you, the
tribunal must find that there has been discrimination unless you explain your actions.
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However,
if the discrimination claim is on grounds of colour, he will have a harder test
to satisfy; in the same circumstances the tribunal may, but does not have to,
find discrimination even if you do not explain your actions.
Rachel
Mann is a solicitor with Lovells Employment Group
