24/06/2022

The Issues

Brexit was undoubtedly a political vote about migration and started a trend of thinking in terms of  “us” and “them.” Political rhetoric from politicians such as President Trump who wants to build a wall to keep the Mexicans out has increased this type of “us” and “them” thinking.  Tragic terrorist acts and threats have also resulted in an increase in hate crimes and hate speech.  All this has led to a false impression that some level of racial resentment/intolerance is acceptable.  For employers, this creates difficulties in maintaining neutrality in the workplace and taking reasonable steps to ensure that employees are not discriminated on racial grounds.  This article explores the position in Northern Ireland and looks at the legal perspective, before considering what can employers can do to promote good race relations.

 

Northern Ireland

Northern Ireland has only 0.1% of the total UK migrant workforce.  The 2011 census (figures of which are out of date but are the most up to date) stated that there were 81,453 people born outside the UK or the Irish Republic.  This represented 4.5% of the total Northern Ireland population of 1.8 million; of that 1.8% of the population believed that they belong to a minority ethnic group.

 

Migrant workers primarily live in Belfast, Dungannon, Craigavon, Newry and Mourne areas and predominantly come from Eastern European countries such as Slovakia, Lithuania and Poland.  Approximately 5% of the Northern Ireland workforce is comprised of migrant workers.  Statistics show that migrant workers tend to fill posts that are hard to fill (such as cleaning and agriculture jobs) and tend to be lower skilled and lower paid.  For employers in those sectors and geographical areas the impact of Brexit remains a real concern.

 

So, does Northern Ireland have any race issues in the workplace?  According to the number of Tribunal Claims you may be led to think that there is not.  Since 2015 there have been 184 race discrimination cases lodged, 79 of which were in 2016.  This number is similar to the number of religious discrimination claims in that year.  However, these figures may misrepresent the real situation and that there is evidence that migrant workers are less likely to complain particularly about low level abuse.  Other factors, such as language barriers and lack of knowledge of how to lodge a claim, may be behind these numbers.

 

The Law

There are some differences between the race discrimination laws in Northern. Ireland and GB that are not explored in this article.  However unlawful race discrimination includes the familiar concepts of direct and indirect discrimination, harassment and victimisation.  For example it would be direct discrimination if a black employee complained about a manager’s conduct and a senior manager then commented erroneously that it was a race discrimination complaint.  As direct race discrimination cannot be justified motive is irrelevant.

 

Indirect discrimination could occur where a Polish person with little written or spoken English applied to be a cleaner, could do the job but was not shortlisted due to their lack of English.  Whilst indirect discrimination can be justified it is unlikely that in this case the requirement for written or spoken English could be shown to be a proportionate means of achieving a legitimate aim.

 

Examples of racial harassment would include racist jokes (French girl subject to ‘oh la la’ jokes) banter and insults (‘Go back home you foreigner’) or mimicking accents or the way a person speaks.

 

It would be victimisation if an employee raised a race discrimination complaint then applied for a more senior position but was not selected on grounds that the interviewer consciously or unconsciously took into account the fact the employee had raised a complaint.

 

Employer Liability

Employers are liable for anything their employee does in the course of their employment.  The definition of ‘in the course of the employment’ has been extended by case law.  Essentially, if there is a link back to the workplace then the employer may be liable regardless of whether the act was done with their knowledge or approval.  Importantly the offending employee can also be personally liable.  Compensation is joint and severable against any named Respondent and is also unlimited.  The employer does have a defence, if it took all reasonable steps to prevent the employee from doing that (discriminatory) act or from doing anything of that description.

 

Reasonable Steps Defence

The reasonable steps defence goes some way towards the employer maintaining good race relations in the workplace.  In order to succeed with the defence, employers must take reasonable steps before any discrimination has occurred and thereafter deal with the matter effectively once it has occurred.

 

To succeed with the defence, as a minimum, employers must not only have equal opportunities and anti-harassment and bullying policies, but also have:

1. Put the policies into practice.
2. Reviewed the policies as appropriate.
3. Made all employees aware of the content of the policies and their implications.
4. Trained managers/supervisors/employees in equal opportunities and harassment issues.
5. Taken steps to deal effectively with complaints, including taking appropriate disciplinary action.

 

However, having policies and training is insufficient if it can be shown that managers turned a blind eye to racial harassment and banter in the workplace.

 

Maintaining good race relations

But good race relations is more than defending legal claims and there are sound business reasons for your business to fully support equal opportunities.  There is evidence to show that businesses who fully support equal opportunities have a more productive workforce, lower absentee figures, higher employee retention levels and higher staff morale.  This will all contribute to a workplace that is more productive.

 

Diversity and inclusiveness are currently key concepts in Human Resources.  It is recognised that a workforce can be diverse but not inclusive.  In order to be inclusive employees need to have a voice, feel valued and connected.  Whilst training is a vital step to creating a positive culture it is rarely enough on its own.  To be successful it needs to be led from the top down and senior leaders need to drive and support a culture that embraces differences.

 

Steps for your Organisation

Your organisation should consider its workforce composition and assess if any concerns have been raised through the Company’s processes e.g. exit interviews or appraisals.  Training should be refreshed in areas where it is required or where it is outdated.  Leaders should clearly demonstrate that they endorse equal opportunities.  Importantly, managers need to know how to respond to concerns raised both formally and informally as they tend to be the first recourse for workers.  In appropriate circumstances a good manager may be able to nip matters in the bud at an early stage to prevent issues escalating.  Your organisation should consider if it could successfully rely on the reasonable steps defence.  Being proactive to promote a more diverse and inclusive workplace, by gaining a better understanding of the cultures that exist in your organisation, will assist improving workplace relationships and is likely to contribute to increased productivity.

 

Impact of Brexit

Undoubtedly Brexit will have an effect on race discrimination.  Migration remains a central issue and it is unknown whether people will be able to move freely across the borders. This may lead to increased racial tension.  There is also some concern that there may be a roll back on equality laws.  This is complicated by the fact that equality law is devolved in Northern Ireland and we may see further areas of divergence in our laws from those in GB.  However it is clear from the Draft Programme for Government that equality and good relations are seen to be essential to ensuring a prosperous and thriving Northern Ireland