Race: Employment

The race discrimination legislation is broadly similar to the sex discrimination legislation. The Race Relations (NI) Order 1997 is the principal legislation and is based on the Race Relations Act 1976 in Great Britain.Racial grounds are defined to cover colour, race, nationality, ethnicity, or national origin.

The Order outlaws racial discrimination in the workplace, education, and the provision of goods, facilities, services, or the disposal and management of premises. It provides mechanisms for redress, complaints, and recourse to the Commission for Racial Equality for Northern Ireland, which has since been merged into the Equality Commission for Northern Ireland.

The primary test for direct discrimination on racial grounds is whether the complainant would have received the same treatment but for their race. As with other areas, motives and intentions are not relevant.

It is discrimination to knowingly assist another in contravention of the legislation.

Indirect discrimination occurs when conditions and requirements are imposed that, while apparently free from racial bias, disproportionately and disadvantageously affect persons of a particular racial group. Indirect discrimination involves

• a requirement and condition applied equally to all;
• the proportion of persons from the same racial group as the victim who can comply is considerably smaller than the proportion not belonging to that group;
• the requirement or condition cannot be shown to be justifiable;
• the requirement or condition does not relate to the detriment of the alleged victim because they cannot comply with it.

Unlawful discrimination can become lawful if it is justified. The requirement must be justifiable on an objective basis. For example, a prohibition on beards that may impact certain religions may be justifiable when shown to be necessary and reasonable for hygienic reasons.

In several cases, requirements for uniforms that adversely affected Sikhs, whose religion required wearing a turban, were found to be indirectly discriminatory. The courts accepted that Sikhs constituted a separate ethnic group.

The Race Relations (NI) Order does not provide for discriminatory grounds based on religious belief and political opinion. This is because these matters are the subject of more specific legislation in Northern Ireland under the Fair Employment Orders.

Segregation constitutes less favourable treatment and will almost always constitute direct discrimination.

Victimisation on racial grounds is prohibited. If a person takes action under equality legislation, provides information on behalf of another, alleges that a person has contravened the Order, or that there has been no breach of legislation, they may be subject to victimisation if they are treated less favourably.

It is sufficient that the person undertaking the discrimination believes or suspects that they have done so or intend to do the above. These provisions apply when the action taken follows because it is known or believed that a complaint under employment legislation is being made.

If there is another justifiable reason that is the true ground for the action, it will not constitute victimisation. However, it is not necessary to show that this is the deliberate basis of the decision. If there is evidence to infer that this is an influence, consciously or subconsciously, there may be victimisation.

Discrimination is prohibited in relation to recruitment. Trade unions may not discriminate in applications for membership. Bodies conferring qualifications may not discriminate.

Persons engaged in vocational training may not discriminate in terms of access.

Partners may not discriminate when selecting new partners, setting terms and conditions, or remunerating. Barristers may not discriminate in choosing pupils.

The legislation applies to contract and agency workers.

If it is a genuine occupational requirement that a person is from a particular ethnic group, it is not unlawful discrimination. It must be shown that it is a bona fide requirement that the post holder is from a particular ethnic origin and that it is not unlawful discrimination to prefer that person. The exception applies only to occupations where the role is required for authenticity, including dramatic performances and entertainments, models, and working in the food and drinks industry.

There may be a genuine occupational qualification requirement where a person provides personal services to promote the welfare of a group, and the services can be most effectively provided by members of that group. This defence is not available where there are employees of the relevant group available who are capable of carrying out the duties, and it would be reasonable to employ them for those duties to meet the employer’s likely requirements without undue inconvenience.

Employers are liable for discrimination by their employees in the course of employment. It need not be done with their approval or knowledge. There is a defence if the employer took steps reasonably practicable to prevent the employee from doing the particular act or similar acts.

Positive discrimination is only lawful where it is a genuine occupational qualification. Affirmative measures are permitted under limited conditions. This applies where the group has special needs or has been underrepresented in the particular workforce.