The
next time your workforce discusses the latest England, Scotland or Wales
national teams, beware. As david morgan reports, a recent decision on national
origins could have a major impact on employers and the approach taken by
employment tribunals in race discrimination cases throughout the UK
After
the recent controversy that surrounded Anne Robinson’s comments regarding the
Welsh on the BBC television programme Room 101, a recent decision of the
Scottish Court of Session involving BBC Scotland is particularly significant.
The Broadcasting Standards Commission may have cleared Robinson of racism,
taking account of "Wales’ position as a constituent nation of the United
Kingdom" but, had it applied the Court of Session’s approach to the
definition of "national origins" in the Race Relations Act 1976, it
might have come to a different view.
In
light of the court’s landmark ruling, employers should review equal
opportunities policies and practices, to take into account the fact that race
discrimination now embraces intra-UK discrimination.
Background
to the case
In
BBC Scotland v Souster, 2001, IRLR 150, the Court of Session (the Scottish
equivalent of the Court of Appeal) ruled that the English and Scots are
different racial groups for the purposes of the Act, by reference to their
national (but not ethnic) origins. The same approach is most likely to be taken
in respect of the Welsh and Irish, despite the exclusion from the 2001 UK
Census of the Welsh as a distinct category of national origin (contrary to the
recommendations of the Commission for Racial Equality).
The
Souster case is now authority for the proposition that it is unlawful race
discrimination to subject an employee to less favourable treatment by reason of
the fact that he or she is Scottish or English. The court adopted an expansive
approach to the meaning of "national origins" and established a
subjective test, despite the arguments by BBC Scotland that the Act should be restricted
to the concept of nationality or citizenship.
The
applicant, Mark Souster, an English sports journalist, was employed by BBC
Scotland on a succession of fixed-term contracts as a presenter of Rugby
Scotland, until his contract was not renewed in 1997. When a Scottish female
was appointed to his position, Souster claimed that a major factor in his
dismissal was his "natural origins". He claimed racial discrimination
before an employment tribunal, alleging that BBC Scotland had preferred a Scot
for his job.
Souster
largely founded his case upon an earlier decision of the EAT in Northern Joint
Police Board v Power, 1997, IRLR 610, which had held that the Act was capable
of covering discrimination between English and Scots on the grounds of race. It
fell to the Court of Session to test this decision and to clarify the issue
once and for all. Souster’s case must finally be determined on its facts by a
full hearing before an employment tribunal.
National
origins or nationality
Rejecting
BBC Scotland’s argument that the earlier EAT decision of Power was wrong in
that the word "nationality" and the concept of "national
origins" should be restricted to nationality or citizenship in the legal
sense, the court adopted a broad approach to the Act. It held that both concepts
were capable of meaning "membership of a certain nation in the sense of
race". The court drew from historic events such as the battle of
Bannockburn, which were referred to in an earlier decision of the House of
Lords, to stress the distinction between the national origins of the Scots and
the English, albeit that both share a common British citizenship.
The
court distinguished between racial groups defined by reference to their
"ethnic origins" (requiring some distinctiveness or community and
long shared cultural traditions) and by reference to "national
origins". At the same time, it took a purposeful approach to interpreting
the Act. It held that, where an applicant alleges racial discrimination, the
employment tribunal may, in certain circumstances, consider the complaint on
the grounds of either ethnic or national origins, without requiring the
applicant to distinguish which of the two labels applies to his case. This
distinction is significant since the court went on to hold that the Scots and
English are not separate "ethnic groups".
Distinctiveness
of community
In
the conjoined case of British Airways v Boyce, 2001, IRLR 157, which was heard
at the same time as Souster before the same Court of Session, it was held that
Boyce was precluded from re-raising a separate but virtually identical claim of
race discrimination on the grounds of his being an Englishman. His earlier
claim had already been refused on the basis that the English are not an
"ethnic group" within the meaning of the Act.
While
the Boyce decision underlines the importance of applicants presenting all their
legal arguments at the time of raising their application, the broad approach
taken by the court in Souster is now clear authority that an applicant cannot
be constrained from a jurisdictional point of view, from presenting a race
discrimination complaint to a tribunal on the basis that he feels discriminated
against by reason of being Scottish, Welsh or Irish.
The
court held that the Scottish (and, for that matter, the English) lacked the
necessary distinctiveness or community, for instance, which Sikhs or Jews
respectively share, to be construed as an "ethnic group" as defined
in the seminal case of Mandla v Dowell Lee, 1983, IRLR 209. However, despite
the lack of this racial or ethnic "flavour", it was held that the
definition of "national origins" is wide enough to offer protection
to both groups by reference to their individual history and geography.
What
does this mean for employers?
There
are practical implications to the court’s decision:
–
Although not specifically enshrined in the Act, the concept of harassment on
racial grounds falls within the prohibition of direct racial discrimination.
Employers will be vicariously liable for the unlawful actions of their
employees, with potentially unlimited financial awards at tribunal. Employers
should be particularly mindful of the fine line between national pride and
racism, for example, following a national sporting event between rival teams of
different nations. One person’s "banter" may be viewed as another’s
harassment
–
Existing equal opportunities policies should be reviewed to ensure the concept
of race discrimination includes discrimination on the grounds of national
origins and specifically embraces intra-UK discrimination
–
The subjective tests set out in the Souster case mean that the concept of
national origin is a movable feast. The court held that national origins could
be acquired by an employee through adoption, marriage or even through their own
perception
–
As an employee’s perception is by its nature subjective, employers who
undertake racial monitoring should ask employees to confirm in writing how they
view their national origin without making prejudiced assumptions. Employers
should follow the CRE guidelines that recommend separate classifications for
English, Irish, Scottish or Welsh
–
Because protection against discrimination extends to the recruitment stage,
employers should be careful not to discriminate against candidates of one
national origin by placing unnecessary geographical restrictions on
applications under the guise of mobility issues. The Souster decision has
implications for both direct and indirect race discrimination
Conclusion
Devolution
in the UK and the creation of the Welsh Assembly and Scottish Parliament has
perhaps eroded the concept of what is "British" and is said to have
heightened national pride across the jurisdictions.
The
Souster case provides welcome clarification of the application of the Race
Relations Act to potential less favourable treatment on such grounds and
employers should ensure that their practices and policies comply with what is,
after all, the spirit of the legislation.   n
David
Morgan is a partner in the employment unit at UK law firm McGrigor Donald
The
relevant law
In
its judgement of the Souster case, the court considered the history of the
legislative regime outlawing racial discrimination in the UK, culminating in
the Race Relations Act 1976 ("the Act") and, in particular, its
following sections:
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–
Section 1 (1), which provides that a person discriminates against another if
(a) on racial grounds he treats that other less favourably than he treats or
would treat other persons; or (b) he applies to that other a requirement or
condition which has a disparate impact on the racial group to which the other
belongs, and
–
Section 3 (1), which defines "racial grounds" as including colour,
race, nationality or ethnic or national origins and "racial group" as
a group of persons defined with reference to the same factors.
