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PLEASE NOTE: This section is currently being updated - Jan 2008
THE RACE
RELATIONS (NORTHERN IRELAND) ORDER 1997(AS AMENDED)
The Race Relations (Northern Ireland) Order 1997 (“RRO”)
outlaws discrimination on racial grounds. It came into force
on 19th March 1997 and has been amended many times since its
enactment. It was most recently substantially amended in July
2003 by the Race Relations (Northern Ireland) (Amendment)
Regulations 2003 (the 2003 Regulations)
Although the RRO provides some limited statutory permissions
for engaging in positive action in relation to employment
and training and some of the exceptions referred to below
provide scope for taking proactive steps to address disadvantage,
it does not, subject to limited exception, impose on individuals,
organisations or Government positive obligations to take proactive
steps to promote equality of opportunity between racial groups
. Its main thrust is therefore prohibitive which limits its
potential for achieving structural change.
Key Concepts
”Racial grounds,” for the purposes of the RRO,
includes any of the following grounds - colour, race, nationality
or ethnic or national origins. It also includes the ground
of belonging to the Irish Traveller Community.
“Racial Group” for the purposes of the RRO means
a group of persons defined by reference to colour, race, nationality
or ethnic or national origin.
Groups of people identified by religious belief or political
opinion are expressly excluded because they are covered by
the Fair Employment and Treatment (Northern Ireland) Order
1998.
Definitions of racial discrimination
The RRO expressly defines four main types of unlawful discrimination:
• Direct discrimination
• Indirect discrimination
• Harassment
• Victimisation
Direct discrimination
Direct discrimination is perhaps the simplest form of discrimination
to identify and understand. Article 3(1) (a) of the RRO provides
that a person discriminates against another if, on racial
grounds he treats that other less favourably than he treats
or would treat other persons in the same or not materially
different circumstances.
Direct discrimination does not need to be deliberate as it
is now clearly established that motive or intention are irrelevant.
Direct discrimination once established cannot be justified.
Article 3(2) further expressly provides that segregating a
person from other persons on racial grounds amounts to less
favourable treatment.
Indirect Discrimination
Indirect discrimination is a more complex concept than direct
discrimination and not so readily identifiable. In brief,
it is concerned with the situation where the application of
an apparently neutral provision criterion or practice, although
applied equally to others, has the effect of disadvantaging
a particular racial group and it cannot be justified. The
question of objective justification is approached by determining
whether there is a legitimate aim and whether the means chosen
are proportionate.
A possible example is an employer or training provider who
requires higher language standards than are needed for the
safe and effective performance of the job or participation
in training.
.
Harassment
Although it has long been established through case law that
racial harassment amounts to unlawful discrimination, an express
prohibition on such conduct was inserted into the RRO by the
2003 Regulations. There have been many cases in which harassment
on racial grounds has been successfully challenged and these
have included cases of physical and verbal harassment. They
have involved cases where there has been a course of conduct
or a sufficiently serious one off incident. Cases of racial
bullying at school, at work, whilst undergoing training or
work experience and whilst accessing goods and services may
be challengeable under the RRO.
There may also be additional legal protection from harassment
available under the Protection from Harassment (Northern Ireland)
Order 1997 (PHO). In the recent case of Majrowski v Guys and
St Thomas’s NHS Trust , a case brought under the equivalent
legislation applying in Great Britain ( the Protection from
Harassment Act 1997), the Court of Appeal held that an employer
could be held vicariously liable for the actions of its employee
under that Act. The case involved an allegation that Mr Majrowski
had been harassed by his line manager and that one of the
reasons for the harassment was Mr Majrowski’s sexual
orientation. The court held that liability could be established
under the Act provided that the wrongful actions were sufficiently
closely connected with the employment. Although the case concerned
discrimination on grounds of sexual orientation, the legal
principles enunciated are equally applicable to cases of racial
harassment. It is also strongly arguable that the Act (and
the PHO) equally apply to harassment or bullying in, for example,
a school or training context where the necessary connection
is established.
Victimisation
Article 4 of the RRO provides that it is unlawful to victimize
individuals who have made allegations or complaints of racial
discrimination or provided information or assisted another
to make a complaint. Victimisation may for example take the
form of ostracizing or disciplining someone or dismissing
them. The victimization provision does not apply in relation
to allegations, which were false and not made in good faith.
Scope of the RRO
The RRO provides protection against racial discrimination
in a number of areas that are clearly relevant to the lives
of children and young people in Northern Ireland. It covers
discrimination in:
• Employment and vocational training(Part II)
• Education (Part III)
• Public Authorities in carrying out their functions
(Part III)
• The provision of Goods Facilities and Services (Part
III)
• Housing and the disposal of premises (Part III)
Employment
“Employment “under the RRO is widely defined and
includes a contract of service or apprenticeship and the”
wider notion of a contract personally to execute work or labour.
The protection provided by the RRO relates to “employment
at an establishment in Northern Ireland” which is widely
defined to include the situation where the work is wholly
or partly in Northern Ireland or wholly outside Northern Ireland
provided certain conditions are met.
The protection provided in relation to employment applies
to all regardless of age (provided they are lawfully in employment),
length of service and hours worked. Therefore young people
who are seeking or who already have part-time or holiday jobs
may be able to challenge discrimination on racial grounds
under the RRO.
Who has rights under Part II (Employment and Training)?
The RRO provides protection to a wide variety of groups in
relation to employment and included amongst these are:
• those seeking employment
• existing employees
• those seeking training placements
• those on training placements
• those on work experience
• contract worker
• agency workers
•
Who has responsibilities under Part III (Employment
and Training)?
Included amongst those with legal responsibilities in relation
to employment under the RRO are:
• employers of all sizes (including prospective employers);
• those arranging/providing training;
• those arranging/providing work experience placements;
• employment agencies;
• workers organizations (e.g. trade unions);
• employers’ organizations;
• qualifying bodies i.e. those bodies which can confer
authorizations or qualifications to engage in a particular
trade or occupation.
Article 6 (1) of the RRO provides that it is unlawful to discriminate
on racial grounds against a person seeking employment in relation
to:
• the arrangements made for determining who should be
offered employment (includes advertising, selection/appointment
methods, selection criteria interview etc.);
• the terms on which the employment is offered;
• by refusing or deliberately omitting to offer the
employment.
Article 6(2) provides that in relation to existing employees
it is unlawful to discriminate on grounds of race in relation
to:
• opportunities for promotion transfer or training;
• in relation to benefits and facilities;
• by subjecting that other to any other detriment.
Article 6(2A) makes it unlawful for an employer to subject
to harassment an employee or an applicant for employment.
Article 15(1) of the RRO it is unlawful for those concerned
with the provision of vocational training or making arrangements
for such training to discriminate:
• in relation to access to any training course or other
facilities concerned with such training;
• by deliberately omitting to afford such access;
• in the terms on which the training is provided;
• by terminating the training;
• by subjecting a person to any detriment during the
course of training.
It is also important to note that new article 27A expressly
outlaws post employment discrimination/harassment. The most
common circumstance in which this right is likely to apply
is where a former employer or training provider refuses to
provide a reference or provides a bad reference on grounds
of race.
Exceptions to the prohibition on racial discrimination in
the employment field.
The RRO provides two specific situations where it may be lawful
to discriminate on racial grounds. These are where there is
a genuine occupational requirement (GOR) or a genuine occupational
qualification (GOQ) for recruiting on racial grounds. In accordance
with established principles, however, any exceptions to the
equality principle must be narrowly construed.
Genuine Occupational Requirement (GOR)
Article 7A provides that this may apply in situations where
having regard to the job or the context in which it is carried
out being of a particular race or ethnic or national origin
is a genuine and determining characteristic and it is appropriate
to apply the requirement in the particular case
Genuine Occupational Qualification (GOQ)
Article 8 lists specific circumstances in which selection
on grounds of colour or nationality may be permissible. Those
circumstances include:
• participation in a dramatic performance or other entertainment
for reasons of authenticity;
• participation as a model for reasons of authenticity;
• work in restaurant where for reasons of authenticity
person of a particular racial group is required;
• services promoting welfare of particular racial group
and those services can best be provided by a person from that
same group.
Note: The GOQ exception cannot be relied upon if there are
already sufficient people of the required racial group who
can carry out the duties that attract the GOQ.
Education
Race discrimination in the field of education is prohibited
under Part III of the RRO.
Article 18 of the RRO, which applies to actual and prospective
pupils, provides that an educational establishment cannot
discriminate on racial grounds;
a. in the terms on which it offers to admit a person to the
establishment as a pupil, or
b. by refusing or deliberately omitting to accept an application
for admission to the establishment as a pupil.
Where the person is a pupil of the establishment ,
a. in the way it affords access to any benefits, facilities
or services, or by refusing or deliberately omitting to afford
access to them, or
b. by excluding person from the establishment or subjecting
that person to any other detriment.
These duties relate to both private and public sector educational
establishments.
Article 19 the Education and Library Boards and Catholic Council
for Maintained Schools are under a further duty not to discriminate
on racial grounds.
Article 20 imposes a general duty on any body to which the
RRO applies, to ensure that facilities for education provided
by it and any ancillary benefits or services are provided
without discrimination on racial grounds.
The Department Of Education for Northern Ireland (DENI) has
the power to intervene and issue directions under article
101 of the Education and Libraries (Northern Ireland) Order
1986 to an educational establishment or authority which has
failed to observe the duties under Article 18, 19 or 20.
There are many examples of potential direct discrimination
in education on grounds of race. These may include, for example
racist bullying and a school’s failure to properly address
the issue of discriminatory assessment procedures.
The provisions referred to above have also been used to challenge
successfully a schools’ discriminatory admission’s
policy in the case of Mandla v Lee (Dowell). In that case
the House of Lords held that a refusal to admit a Sikh child
who was wearing a turban amounted to an act of unlawful indirect
discrimination on grounds of race.
It has been suggested that a further potential area of challenge
in relation to admissions criteria in Northern Ireland may
be that of using catchment area or residence requirements.
As specified above the Irish Travellers are expressly protected
under the RRO as a racial group. If a child or young person
from that community is not admitted because they do not meet
a catchment/residence requirement due to their nomadic lifestyle
that may amount to unlawful indirect discrimination on grounds
of race unless the school can objectively justify its policy
in accordance with the stringent requirements of the RRO.
Exceptions in the education field
There are exceptions to the principle of non-discrimination
on racial grounds in the field of education. The scope of
those exceptions has been narrowed by the recent amendments
made to the RRO by the 2003 Regulations.
Article 35 provides that where a specific racial group has
‘special needs’ in regard to education, training
or welfare, provision of facilities to satisfy that need shall
not constitute discrimination e.g. a specific service to raise
literacy skills among Irish Travellers may fall within this
exception.
Article 36 provides a general exception in relation to the
provision of education or training for persons not ordinarily
resident in Northern Ireland. The exception has recently been
narrowed. Article 36 now provides that in relation to colour
and nationality only anything done for the benefit of persons
not ordinarily resident in Northern Ireland in affording them
access to facilities for education or training or ancillary
benefits shall not be unlawful where it appears that the persons
in question do not intend to remain in Northern Ireland after
their period of training or education.
Public Authorities (Part III)
Article 20A provides (subject to specified exceptions) that
it is unlawful for a public authority to discriminate on grounds
of race or ethnic or national origins in the course of carrying
out those of their functions which consist of the provision
of
a) any form of social security
b) healthcare
c) any other form of social protection, or
d) any form of social advantage
Included amongst those now coming within the scope of the
RRO are government agencies including the police, the Public
Prosecution Service, the probation service, the Immigration
Service and the Juvenile Justice System.
Article 20A does not apply to:
• Both Houses of Parliament
• The Assembly
• The Security Services
• Judicial or legislative acts
• Decisions not to prosecute
• Certain Immigration and nationality functions
Provision of Goods facilities and Services (Part III)
Racial discrimination can also occur in the provision of goods,
facilities or services. Part III of the RRO provides quite
extensive protection against such discrimination. Article
21 makes it unlawful for any person concerned with the provision
(for payment or not) of goods, facilities or services to the
public or a section of the public to discriminate on racial
grounds by
• refusing or deliberately omitting to provide the goods
or services
• by refusing or deliberately omitting to provide them
in the like manner or on the like terms as are normal in relation
to other members of the public.
Article 21 provides examples of facilities and services but
this is not an exhaustive list. Included in the examples are
facilities and services received from hotels, restaurants,
cinemas, theatres, leisure facilities, banks or insurance
companies, transport services, services provided by a profession
or trade or by a local or public authority.
If for example a group of young people are denied access to
a shop because they belong to a particular racial group that
will amount to unlawful direct discrimination on racial grounds.
Premises
The RRO provides protection in the private and public sector
against discrimination on racial grounds in relation to the
renting, buying /selling, allocation or management of premises.
“Premises” should include land houses, flats and
business premises.
Article 22 of the RRO provides that it is unlawful for a person
to discriminate on racial grounds in relation to premises
in Northern Ireland:
• in the terms on which the premises are offered
• by refusing an application for those premises
• in relation to any list of persons in need of premises
of that description.
The Northern Ireland Housing Executive, housing associations,
hostels, landlords estate agents property developers, owner-occupiers,
banks and building societies are all covered by RRO in this
regard.
Article 22(2) provides a limited exemption for owner-occupiers.
An occupier who owns an estate or interest in the premises
is exempt from the provision relating to disposal of the premises
unless that person uses an estate agent or otherwise advertises
the premises.
Article 23 contains an exception in relation to small dwellings
as defined in the Order. However this exception applies to
discrimination on grounds of colour or nationality only. It
does not apply in relation to race, ethnic or national origin.
Other unlawful acts (Part IV)
Advertisements
Article 29 provides that it is unlawful to publish or cause
an advertisement to be published which might reasonably be
understood as indicating an intention by a person to commit
an act of discrimination.
Instructions to discriminate
Article 30 provides that it is unlawful for any person to
instruct another to discriminate against a person e.g. where
a shop manager instructs staff not to serve or permit entry
to groups of young Travellers.
Pressure to discriminate
Article 31 provides that it is unlawful for any person to,
pressurize, induce or attempt to induce another to discriminate
against a person. Inducement is defined as “providing
or offering to provide him with any benefit or subjecting
or threatening to subject him to any detriment.”
Vicarious liability
Article 32 provides that employers are vicariously liable
for the acts of their employees done in the course of their
employment. An employer will have a defence against a claim
that s/he is vicariously liable where it can be shown that
s/he took such steps as were reasonably practicable to prevent
the employee from doing the particular act or acts of that
nature.
In order to avail of this defence an employer has to show
the precise steps that have been taken to prevent the discrimination
from occurring in the first place. It is not sufficient that
an employer reacts to discrimination once raised. They must
take proactive steps. These steps may include the adoption
and regular updating of a comprehensive equality policy that
has been clearly communicated to all employees and on which
all employees have been properly trained. It should also include
clear procedures for dealing with discrimination complaints
and ideally have a designated person with whom complaints
can be raised.
Aiding unlawful discrimination
Article 33 provides that it is unlawful to knowingly aid another
to discriminate. The most common example of this is where
someone is harassed by a work colleague who is not the employer.
The employer and the harasser will have a separate liability
with the latter being potentially liable under article 33.
Voluntary Bodies
Article 25 provides that associations, which have more than
25 members may not discriminate in admitting a person as a
member or in allowing him/her to avail of the benefits, provided.
It is however legal under article 25(6) for an association
or club to set up especially for people of a particular ethnic
or national group to discriminate in relation to the benefits
of membership. However this exception does not apply to discrimination
on the grounds of colour.
General Exceptions
Charities
Article 34 contains an exception in relation to charitable
instruments. With one exception these are exempt from the
RRO. That exception relates to colour: where a charitable
instrument restricts benefits to persons by reference to colour,
that restriction is to be disregarded. For example, if a school
is established under a charitable instrument whereby education
is provided to children of British nationality, this is not
unlawful. If however the benefit is restricted to “white”
children then the reference to “white” must be
disregarded.
It is important to note, however, that it is also unlawful
for charities as employers to discriminate on grounds of race,
ethnic or national origins.
Sport
Article 38 provides that it is lawful to discriminate by nationality,
place of birth or length of residence when selecting a person
to represent an area or country in sports, but not by colour.
Positive Action
The RRO does not allow positive discrimination i.e. an employer
or trainer cannot try to change the racial balance of the
workforce or training group by selecting someone on grounds
of race (subject to article 37 referred to below). This is
direct discrimination and is unlawful.
Article 37, however, provides a limited exception allowing
discrimination in certain specified circumstances in training
or encouragement to apply for particular work in which members
of a particular racial group have been under-represented.
This is referred to as positive action and is lawful. The
aim of positive action is to ensure that people from previously
excluded minority ethnic groups can compete on equal terms
with other applicants. It is intended to make up for the effects
of past discrimination. The law does not compel employers
to take positive action but it permits them to do so.
Welcoming statements are a common form of positive action
e.g. an advertisement for a vocational training programme
in an area of work where members of minority ethnic groups
have been under-represented may contain a statement encouraging
applications from those from minority ethnic communities.
National Security
Article 41 provides an exception in relation to acts done
for the purpose of safeguarding national security.
ENFORCEMENT OF INDIVIDUAL RIGHTS UNDER THE RRO
Role of the Equality Commission for Northern Ireland (ECNI)
The ECNI has overall statutory responsibility for enforcement
of the RRO. Article 42 imposes duties on the ECNI to
• work towards the elimination of discrimination
• to promote equality of opportunity and good relations
between persons of different racial groups generally
The ECNI carries out its statutory remit through a range of
functions. Most important of these in terms of enforcing the
right of individuals is the ECNI’s power to assist individuals
who make a formal application for assistance under Article
64 of the RRO. Assistance, if granted may be by way of advice
or, in some cases, by way of representation in the courts
or tribunals. The ECNI also has power to undertake research
and education , to issue Codes of Practice and conduct Formal
Investigations.
Article 64(3) and (4) impose specific requirement on the Commission
in relation to the period within which they must respond to
an application for assistance. There are no similar provisions
under the other discrimination jurisdictions.
Actions by the ECNI
There are a number of contraventions of the RRO referred the
earlier in this section that can be brought only in the name
of the ECNI and these are:
• Discriminatory Advertising (Article 29)
• Instructions to discriminate (Article 30)
• Pressure to discriminate (Article 31)
Role of the courts and tribunals in relation to individual
complaints
Cases of race discrimination in employment and vocational
training or cases relating to work experience (Part II) are
heard in the Industrial Tribunal. All other cases including
education, access to goods and services, housing and accommodation
(Part III) are heard in the County Court. In relation to both
jurisdictions strict time limits apply and these are discussed
below.
Time limits
The time limits that apply in race discrimination proceedings
before the industrial tribunal and the county court are different.
Article 65 of the RRO contains the provisions relating to
time limits.
Industrial tribunal Proceedings
Proceedings in the industrial tribunal are commenced by way
of a Claim Form (IT1). In race discrimination cases involving
employment, vocational training and work experience an IT1
must be lodged with the tribunal before the end of the period
of 3 months beginning when the act complained of was done.
For example if you have been unsuccessful in your application
for a vocational training placement and you believe that your
racial origin was the reason for the refusal the time limit
will run from the date on which you first learned that you
application had been unsuccessful whether orally or in writing.
Where the act of discrimination continues over a period of
time (e.g. a continous campaign of racial harassment) the
three month time limit will run from the end of the period.
It is however very important to distinguish between a series
of discrete incidents and an act that extends over a period.
In the former the time limit will begin to run after each
discrete incident.
County Court
Goods, services and housing
In the County Court proceedings are commenced by Ordinary
Civil Bill. In race discrimination cases relating to goods,
facilities, services, housing and accommodation proceedings
must be issued before the end of the period of six months
beginning when the act complained of was done and, as with
proceedings in the industrial tribunal, an act of discrimination
which extends over a period i.e. is continuous shall be treated
as being done at the end of the period and the six month time
limit will run from that date.
Education
There are special rules relating to the time limits in education
cases that are quite complex. Article 54(5) provides that
before proceedings can be issued in education cases (RRO Articles
18, 19 and 20)
• The claimant must give notice of the claim to the
Department of Education for Northern Ireland (DENI) and (in
relation to a claim on grounds of colour or nationality) either
• DENI has notified the claimant that it does not require
further time to consider the matter or
• Two months has elapsed since the claimant gave notice
to the Department
In these types of cases the time limit for issuing an Ordinary
Civil Bill in the County Court is extended to eight months.
Claims which are out of time
Both the industrial tribunal and the County Court have a discretion
to admit claims outside the time limit where in all the circumstances
of the case the tribunal or court considers that it is just
and equitable to do so. The trend however in recent years
has been to exercise that discretion very sparingly.
Statutory Questionnaire Procedure
It is often difficult to obtain direct evidence of discrimination.
Article 63 of the RRO provides a statutory questionnaire procedure
that is available for obtaining information to claimants in
race discrimination cases of all types. Claimants can ask
questions and seek documentary evidence from Respondents that
will assist them in determining whether they have been discriminated
against. Respondents are required to provide a response within
8 weeks. It is important to remember that even if a response
to a questionnaire is outstanding the time limit continues
to run in the usual way as described above and therefore if
necessary protective proceedings should be lodged pending
a response to the statutory questionnaire.
Remedies
Where an individual is successful in a claim of unlawful discrimination
on grounds of race in the industrial tribunal may:
• Make a Declaration of discrimination
• Award compensation ( including compensation for injury
to feelings)
• Make a Recommendation that the Respondent take certain
steps to obviate the effects of the discrimination on the
Claimant/Plaintiff
Where a complaint of race discrimination is upheld in the
County Court the remedies available are comparable to those
available in the High Court.
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