The Race Relations (Northern Ireland) Order (the RRO), as amended by the Race Relations Order (Amendment) Regulations (Northern Ireland) 2003 outlaws discrimination on the grounds of colour, race, nationality or ethnic or national origin. The Irish Traveller community is specifically identifed in the RRO as a racial group which is protected against unlawful racial discrimination.
Further changes to the race relations legislation concerning the definition of indirect discrimination were introduced by the Race Relations Order (Amendment) Regulations (Northern Ireland) 2009.
The RRO makes it unlawful to discriminate in the fields of employment, education, the disposal and management of premises, and the provision of goods, facilities and services. The RRO also provides that segregation on racial grounds constitutes discrimination.
What is race discrimination?
Goods, facilities and services
Land and premises
Other unlawful acts
Enforcement of RRO employment complaints
Enforcement of other RRO complaints
Discrimination is not simply unfairness. To be discriminated against means to be treated less favourably than others. Race discrimination is less favourable treatment on the grounds of colour, race, nationality or ethnic or national origin, or on the grounds of belonging to the Irish Traveller community.
The RRO, as amended, outlines four types of discrimination:
1. Direct discrimination is where someone is treated less favourably than others in the same or a similar position and the treatment is based on racial grounds. An example might be where an Asian worker was not appointed to a job because of her/his colour or ethnic origin.
2. Indirect discrimination specifies two definitions:
2a. The first definition applies only to complaints on the grounds of race or national or ethnic origin but not to complaints on the grounds of colour or nationality. This form of indirect discrimination occurs where a provision, criterion or practice is applied or would be applied equally to persons not of the same race or ethnic or national origins as another but:
- which puts or would put persons of the same race or ethnic or national origin as that other at a particular disadvantage when compared with other persons;
- which puts or would put that other at that disadvantage; and
- which cannot be shown to be a proportionate means of achieving a legitimate aim.
2b. The second definition of indirect discrimination applies to complaints on the grounds of colour and nationality only. Indirect discrimination occurs when a requirement or condition is applied which only a considerably smaller proportion of one racial group can comply with, which is not justifiable and which is to the claimant´s detriment because s/he cannot comply with it.
An employer requires higher English language standards than are needed for the safe and effective performance of a job.
3. Victimisation means treating someone less favourably than others because they have complained of race discrimination or they have assisted someone else to do so.
An employee is denied overtime because s/he was a witness for someone claiming racial discrimination against their employer.
4. Harassment based on racial grounds occurs when unwanted conduct based on race or ethnic or national origins has the purpose or effect of violating someone´s dignity or creating an environment that is intimidating, hostile, degrading, humiliating or offensive. A slightly different definition of harassment applies to complaints on the grounds of colour or nationality. Racial harassment can include the making of racist jokes, banter, insults or isolating individuals.
Complaints of racial harassment may be made against an employer as well as the harasser. Employers are liable for any racial harassment committed by their employees in the course of their employment, even if the employer did not know about the harassment or would not have approved of it had the employer known. Employers can successfully defend a racial harassment case if they can show that they took such steps as were reasonably practicable to prevent the harassment happening.
The RRO outlaws discrimination by employers against members of their existing workforce and in the recruitment of new employees. Employers are also liable for acts of discrimination committed by their employees in the course of their employment, whether or not the acts were done with the employer´s knowledge or approval, unless the employer can demonstrate it took such steps as were practicable to prevent discrimination from occuring.
The RRO also applies to the following bodies:
- those with statutory power to select employees for others;
- employment agencies;
- persons concerned with the provision of vocational training;
- trade unions;
- those who have power to confer qualifications;
- contract workers;
- statutory office holders in relation to discrimination on the grounds of race, ethnic or national origins;
- barristers; and
- partnerships (limited to partnerships of six or more partners where the complaint is of discrimination on the grounds of colour or nationality).
In addition, in certain circumstances, former employees will have rights under the RRO. For example, it will be unlawful for an employer to refuse to provide a work reference for a former employee on the grounds of race.
The RRO provides that racial discrimination by an employer in recruitment, promotion, transfer and training is not unlawful where a person´s race or ethnic or national origin is a genuine and determining occupational requirement having regard to the nature of the job or the context in which it is carried out. In addition, racial discrimination is not unlawful where a person´s colour or nationality is a genuine occupational qualification (GOQ) for the job. For example, a person of a particular racial group may be required for a job involving participation in a dramatic performance or as a photographic model for reasons of authenticity or where the job holder provides people of one racial group with personal services promoting their welfare and those services are most effectively provided by someone of the same racial group.
The RRO covers discrimination on the grounds of colour or nationality in employment in Northern Ireland if the employee does his/her work wholly or partly in Northern Ireland.
The RRO covers discrimination on the grounds of race, ethnic or national origin, or harassment in employment in Northern Ireland if the employee does his/her work wholly or partly in Northern Ireland, or does his/her work wholly outside Northern Ireland and:
- the employer has a place of business at an establishment in Northern Ireland;
- the work is for the purposes of the business carried out at that establishment; and
- the employee is ordinarily resident in Northern Ireland at the time when he/she applies for or is offered employment, or at any time during the course of the employment.
The RRO prohibits discrimination in education at all levels and in addition places a general duty on educational bodies to ensure that their facilities are provided without racial discrimination.
Schools, colleges and other educational establishments cannot discriminate on racial grounds. It is unlawful for the body responsible for an educational establishment to discriminate:
- in the terms on which it offers to admit a person to the establishment as a pupil;
- by refusing or deliberately omittting to accept an application for admission as a pupil;
- in the way it affords a pupil access to any benefits, facilities or services, or by refusing or deliberately omitting to afford such access; or
- by excluding such a pupil from the establishment or treating such a pupil unfavourably in any other way.
It is unlawful for the body responsible for an educational establishment to subject to harassment:
- a person who applies for admission to the establishment as a pupil; or
- a pupil at the establishment.
The RRO places a general duty on the responsible bodies for educational establishments in the public sector to ensure that facilities are provided without racial discrimination.
The RRO permits any act done to allow persons from a particular racial group access to facilities and services to meet the special needs of persons of that group with regard to their education, training or welfare or any ancillary benefits.
The RRO also outlaws discrimination on the grounds of race in the provision of goods, facilities and services which are available to the public. This includes refusal of a service or the provision of a lower standard of service. Discrimination of this kind is unlawful whether the service is paid for or not. Examples include:
- access to and use of any place which members of the public are permitted to enter;
- accommodation in a hotel, boarding house or other similar establishment;
- facilities by way of banking or insurance or for grants, loans, credit or finance;
- facilities for education;
- facilities for entertainment, recreation or refreshment;
- facilities for transport or travel; and
- the services of any profession or trade, or any local or other public authority.
It is also unlawful, on the grounds of race or ethnic or national origins, for a service provider to harass a person to whom it provides goods, facilities or services, or to harass someone who seeks to obtain or use any goods, facilities or services.
It is unlawful for public authorities to discriminate on the grounds of race or ethnic or national origins or to subject persons to harassment in the course of carrying out any of its functions relating to:
- any form of social security;
- health care;
- any form of special protection; or
- any form of social advantage.
The term "public authority" does not include either House of Parliament or parliamentary functions; the Assembly; the Security Service; the Secret Intelligence Service; the government communications headquarters or any part of the naval, military or air forces. Certain judicial and legislative acts, certain immigration acts and decisions not to institute criminal proceedings are also not included in the general prohibition against discrimination on the grounds of race or ethnic or national origin.
It is unlawful for anyone selling or managing property or premises to discriminate on racial grounds. For example, it would be unlawful for a landlord to refuse to rent to or to evict someone on the basis of their race or colour or national origin. It is also unlawful for a landlord to harass a tenant or prospective tennant.
However, there are exceptions for discrimination on the grounds of colour and nationality in relation to small dwellings where the landlord occupies the premises. The general prohibition on discrimination also applies to fostering or boarding out in a family home.
Discrimination by social and sporting clubs is also prohibited except where the main object of the club or association is to confer benefits on persons of a particular racial group which is not defined by reference to colour.
The RRO also makes it unlawful to apply discriminatory practices, publish discriminatory advertisements, instruct or put pressure on a person to do anything contrary to the RRO by discriminating in employment or other fields, or to knowingly aid another person to carry out such acts.
Employers are also liable for acts of discrimination committed by their employees in the course of their employment whether or not the acts were done with the employer´s knowledge or approval, unless the employer can show that it took such steps as were reasonably practicable to prevent the discrimination occurring.
There are exceptions to the general principle of race discrimination and the RRO exempts:
- access to facilities or services which meet the special needs of racial groups with regard to their education, training or welfare;
- discrimination, on the grounds of colour and nationality only, in relation to the provision of education or training for persons not ordinarily resident in Northern Ireland;
- discrimination on the grounds of nationality, palce of birth or length of time resident when selecting someone to represent a country, place or area in any sport or game or in relation to rules on eligibility to compete in any sport or game;
- acts done to safeguard national security, or to protect public safety or public order;
- acts done under statutory authority where the discrimination is on the grounds of colour or nationality;
- certain restrictions based on nationality or residence or length of residence in the UK with regard to employment by the Crown;
- discriminatory acts on the grounds of colour and nationality only in relation to the provision of accommodation, the disposal of premises or the granting of licence/consent in relation to small dwellings;
- acts done by a person as a participant in arrangements under which s/he takes into her/his home, and treats as if they were members of her/his family, children, elderly persons or persons requiring a special degree of care and attention;
- certain acts done by charities on grounds of colour or nationality;
- employment where being part of a particular race or ethnic or national origin is a genuine and determining requirment for the employment in question;
- certain acts in relation to the pay of seamen recruited abroad;
- small private clubs with less than 25 members;
- certain judicial and legislative acts;
- certain acts in immigration cases; and
- certain decisions not to prosecute in criminal cases.
The RRO permits positive action in favour of members of particular racial groups to enable their special education, training and welfare needs to be met. It is lawful to provide training or encouragement for members of a particular racial group to enable them to compete for particular work where members of that group are either absent or under-represented in that area of work. It is also lawful for an employer in relation to particular work in his establishment to allow employees of a particular racial group access to facilities for training or to encourage them to take advantage of opportunites for doing that work where there are no members of that racial group doing that work at the establishment, or they are under-represented. Similar provisions apply to encouraging members of particular racial groups to join and, once a member, to apply for posts within trade unions, employers´ associations or any professional or trade organisations.
Complaints of discrimination in employment under the Race Relations Order must be made within three months of the act complained of. Complaints are dealt with by an industrial tribunal.
Where a tribunal decides in favour of the complainant, it may award any such of the following remedies, as it considers just and equitable:
- an order declaring the rights of the parties;
- an order requiring the respondent to pay compensation to the complainant;
- a recommendation that the respondent takes remedial action to obviate or reduce the effect of discrimination on the complainant.
In industrial tribunal proceedings, each party will normally pay its own costs although the tribunal may award costs against either party in certain circumstances. In particular, if a tribunal considers a party has acted unreasonably or that a party´s action in bringing the proceedings has been misconceived, the tribunal may award costs against that party. The maximum costs the tribunal can award against a party are £10,000. In practice, awards of costs are much lower than this and the tribunal will take into account the claimant´s ability to pay.
There is a right of appeal on a point of law to the Court of Appeal against a decision by an industrial tribunal.
Claims of unlawful discrimination in education, housing and premises and in the provision of goods, facilities and services must be made within six months of the act complained of. This time limit can be extended by 2 or 3 months by making an application for assistance to the Equality Commission.
Where a complaint relates to certain public sector education and is on the grounds of colour and nationality only, there is a requirement to give two months notice to the Department of Education and in these circumstances, the time limit is extended from six to eight months.
Complaints are dealt with in the county court. Where a county court finds in favour of the claimant, it may award any of the following remedies:
- an order declaring the rights of the parties;
- an injunction or order; and
- damages, including compensation for injury to feelings.
Where the court finds against a party, that party will normally pay their own costs and the costs of the other party.
There is a right of appeal to the Court of Appeal against a decision by the county court. If leave is granted, a further appeal can be made to the House of Lords.