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Race Discrimination in the Workplace

The provisions of the Employment Equality Acts provide Discrimination shall be taken to occur where; “A person is treated less favourably than another is, has been, or would be treated in a comparable situation on any of the grounds specified in subsection 2.”

Thus the Acts provide that discrimination shall be taken to occur where; a person is treated less favourably than another is, has been would be treated in a comparable situation on any of the grounds specified in the Acts.

Section 6(2) provides that as between any two persons, the discriminatory grounds are inter-alia, they are of different race, colour, nationality or ethnic or national origins.

In cases brought on the grounds of race and religion it is now accepted practice that the probative burden shifts to the respondent in circumstances where the Claimant establishes a prima facie case of discrimination.

In 58 Named Claimant’s Vs Good Concrete Ltd Ref EEC E 2008/20 the Equality Officer held that the Labour court in the case of Campbell Catering Ltd and Rasaq Det EED048 has stated: “It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture.

A Claimant therefore must, in the first instance, establish facts from which can be presumed that he was subjected to discriminatory treatment on the grounds that race it is only when he was discharged that obligation to the satisfaction of the equality officer of the burden shifts the respondent to rebut the inference of discrimination raised.

…In such cases, applying the same procedural standards to a non-national workers as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination.”

Following the decision in 58 Named Claimants Vs Good Concrete Ltd there is a requirement to furnish a foreign national with a Health and Safety statement.  This is particularly so where a Claimant is working in an inherently dangerous business.  There is in any case a statutory requirement to furnish individuals with health and safety documentation.

In the case of Eupat Ltd. (in Voluntary Liquidation) V Arturas Businkas (determination no. EDA103) it was confirmed that it was not for the Equality Tribunal nor the Labour Court on appeal to enforce Registered Employment Agreements and the Acts do not confer such jurisdiction on the Equality Tribunal.

What must be decided is whether the Claimant was less favourably treated in relation to his conditions of employment.

In the case of a foreign national who would not be conversant with Irish health and safety law, it is now contended that there is an obligation to provide an employee with a health and safety statement and in failing to provide same to him in a language likely to be understood by him amounts to discrimination.

In relation to the obligation to ensure all health and safety instructions were communicated international language of the applicant, the court has recently confirmed in Clare Civil Engineering V Ostojic and Others that while health and safety instructions of his important, the court can be satisfied that such instruction was generally imparted to all workers for the well-being on site and that where a Claimant would have reasonable experience from previous work practices whether in Ireland or elsewhere then they will have reasonably attended to their obligations.

It has been held that in circumstances where an employer furnishes its employees with contracts of employment and/or health and safety statements it constitutes less favourable treatment of non-Irish employees if the employer provides them with a contract of employment in English and not in a language which they can understand.  There is a subtlety here which must be comprehended by employers and which has been upheld by the Tribunal that although an employee may have a reasonably good grasp of a language, an employer must “…put in place clear procedures for ensuring that non-national employees are clear as to their terms and conditions of employment and also understand all safety documentation”

Rather than specifying that the contract of employment and/or health and safety statement should be provided in an employee’s native language, or any other language for that matter the Tribunal has focused on the Employee’s ability to comprehend those terms and conditions.  Therefore, the clear principle in the Goode Concrete case was to place the onus on the Employer and in this case the Respondent to make reasonable efforts to ensure that relevant employees understand their rights and that it ensured that they are not treated less favourably than someone else who was aware of those rights.

The test normally used to determine when and in what circumstances the burden of proof should shift to the respondent is formulated in the case of Mitchell V Southern Health Board 2001 PLR 201.  This test provides that the Claimant must first prove the primary facts upon which they rely.  If those facts are proved and they are regarded by the court as of sufficient significance to raise an inference of discrimination, the burden of proving the absence of discrimination shifts to the respondent.

What must be decided by an Equality Officer or the Labour Court is whether a Claimant was less favourably treated in relation to his conditions of employment.

The burden of proof is detailed in Section 85A of the Acts which provides that should a Claimant establish facts by which it may be presumed that he suffered discrimination, it is for the respondent to prove the contrary.

It is well established that there must be a difference in treatment and a difference in Race for there to be evidence of discrimination.

Furthermore in the above case, the Court confirmed as follows;

“In relation to the comparator, it is not sufficient, in my view, to ignore actual comparator workers and assert that a hypothetical Irish employee would not have been treated in the same manner by the respondent.”

The Labour Court stated in relation to the burden of proof in cases brought on the race and religion grounds that it is now accepted practice of the Court that in all cases involved in discrimination the probative burden will shift to the Respondent in circumstances where the Claimant establishes a prima facie case of discrimination.  The test normally used in determining when and in what circumstances the burden of proof shifts to the Respondent is that formulated in the case of Mitchell -v- Southern Health Board [2001] ELR201.

This test provides that the Claimant must first prove the primary facts upon which they rely in asserting discrimination.  If those facts are proved and they are regarded by the Court as of sufficient significance to raise an inference of discrimination, the burden of proving the absence of discrimination shifts to the Respondent.  This test is based on the wording of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001.  These Regulations provide that the probative burden shifts when the Claimant establishes the facts from which discrimination maybe presumed which is derived from Directive 97/80 EC (The Burden of Proof Directive) is now replicated in Article 8 of Council Directive 2000/43 on equal treatment between persons irrespective of race or ethnic origin.

In order to succeed in this contention, a Claimant must be able to produce some significant evidence and not mere supposition to allow the court to draw an inference that persons of different race or nationality were or would be treated more favourably.

The Labour court has indicated previously that the failure to apply the appropriate terms and conditions of employment as stipulated by the REA is by no means confined to the national workers.

Section 85A(1) of the Acts states; “ where in any proceedings facts are established by or on behalf of the Claimant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.”

This means that the Claimant must establish primary facts upon which the claim of discrimination is grounded and that the burden of proof passes to the respondent.

It is well established that there must be a difference in treatment and a difference in Race for there to be evidence of discrimination.

The Labour court in the case of the Southern Health Board vs Dr Teresa Mitchell considered the extent of the evidential burden which the claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out.

It stated that the claimant must: “establish facts from which it can be presumed that the principle of equal treatment has not been applied to them.  This indicates that a Claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.  It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment.”

The Labour Court went on to hold that a prima facie case of discrimination is established if the Claimant succeeds in discharging that evidential burden.  If the Claimant succeeds the Respondent must prove that he or she was not discriminated against on those grounds.

Subsequently, the Labour court stated in relation to the burden of proof in cases brought on the race and religion grounds that it is now accepted practice of the Court in all cases involved in discrimination the probative burden will shift to the Respondent in circumstances where the Claimant establishes a prima facie case of discrimination.

A Claimant under the Acts must first establish a prima facie case of discrimination and hence establish facts from which it can be presumed that the principle of equal treatment has not been applied to them.  This indicates that a Claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.  It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment.  The Labour Court has held that a prima facie case of discrimination is established if the Claimant succeeds in discharging that evidential burden. If the Claimant succeeds the Respondent must prove that he/she was not discriminated against on grounds of their sex.

 

 

What is Race Discrimination?

The Labour Court has set out the extent of the evidential burden which the Claimant must discharge for a Prima facie case of discrimination can be made out.  It has stated that a Claimant must establish facts from which it can be presumed that the principle of equal treatment has not been applied to them.  This indicates that the Claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.  It is only if these primary facts are established to the satisfaction of the court o equality officer and they are regarded as being of sufficient significance to raise a presumption of discrimination that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment.

Subsequently, the Labour court stated in relation to the burden of proof in cases brought on the race and religion grounds that it is now accepted practice of the Court in all cases involved in discrimination the probative burden will shift to the Respondent in circumstances where the Claimant establishes a prima facie case of discrimination.

In Toker developments Ltd V Edgars Grods EDA10 and in Good Concrete V Oksana Shaskova EDA 0919 the mere fact of a difference in status (in this case Family status and gender) and the difference in treatment is in itself insufficient to shift the probative burden of proof and therefore there is a requirement to demonstrate actual discrimination.

In Melbury Developments V Valpeters it was submitted that the Appellant was treated badly by the Respondent and the court was invited to infer that he was so treated because of his race.  Such an inference could only be drawn with evidence of some weight.