Recent Decisions on Racial Discrimination in the Workplace

by Katie Doyle, Associate Solicitor on the Employment Law & Benefits team at
Mason Hayes & Curran

In many cities around the world last summer, the Black Lives Matter protests shined a fresh light on the racism and discrimination experienced by many across the world. Racism is an issue that must be addressed at a societal level, including in the workplace.

Irish legislation

Discrimination and harassment on the ground of race are prohibited by two pieces of legislation in Ireland. The first being the Employment Equality Acts 1998 – 2015 (the EE Acts), which covers discrimination in the workplace. The second is the Equal Status Acts 2000-2018 (the ES Acts), which covers discrimination in the provision of goods or services. The definition of the “ground of race” in Irish legislation includes colour, nationality or ethnic or national origins.

Despite the general awareness of racism in Ireland, the Workplace Relations Commission (WRC) continues to receive hundreds of racial discrimination and harassment complaints every year. The 2019 WRC annual report noted that race was the most common ground of referrals under the ES Acts that year, accounting for nearly one quarter of all referrals. Under the EE Acts, race was the ground of referral for over 10% submitted that year. The recently published 2020 WRC annual report notes that race was the ground accounting for nearly 17% of referrals under both the ES Acts and the EE Acts.

Racism at work

In one recent case heard before the WRC[1], a Brazilian national was awarded €15,000 for the effects of discrimination after her manager’s mother commented “of course, the Mother and the world is Brazilian. I hope your English is good”. The Adjudication Officer noted that the employer had not made any real effort to look into the incident and noted that there was no diversity policy in place.

In a separate case[2], a Brazilian national was awarded €10,000 in compensation after the Adjudication Officer determined that she had been harassed and discriminated against in the workplace. The employee gave evidence of multiple racially motivated comments directed towards her, which included “both of you go work on your English”, “what do you think I am speaking, Japanese?” and “I am Irish, you are a simple Brazilian and your English is s##t”.

Defence to harassment claims

The EE Acts provide a full defence to a claim of harassment if the employer can prove that it took steps to prevent the harassment, or took steps to reverse the effects of such harassment.[3]

Victor Kings Oluebube & CPL Solutions Ltd T/A Flexsource Recruitment[4]

The employer successfully relied on the statutory defence in this recent case. The employee, a Nigerian national, complained that he had been discriminated against and victimised by his employer, a recruitment agency. There was uncontested evidence that a colleague imitated the sounds of a monkey in front of the complainant, and made other derogatory and offensive racially motivated remarks. The employee reported the incidents to his manager, who undertook an investigation. The employee was not informed of the outcome of his complaint, or whether a disciplinary sanction had been imposed.

The Adjudication Officer held that the comments constituted harassment, but that as the employer had taken steps to reverse the effect of the harassment, and to prevent a recurrence, the claim failed.

Various factors enabled the employer to successfully rely on the statutory defence, which included:

  • Apologies from the employee’s colleague and the employer itself
  • The encouragement to the employee to proceed with a formal complaint, and
  • The disciplinary investigation and imposition of a final written warning.

It was noted that the absence of the employee’s involvement in the investigation did not compromise its findings, or the outcome. The Adjudication Officer further highlighted that the absence of a written report, and counselling for the employee were not sufficient to deprive the employer from relying on the statutory defence.

Conclusion

Employers must provide a safe working environment for all employees, and must take reasonable steps to prevent discrimination and harassment in the workplace.

In order to ensure that any complaints of discrimination and harassment are appropriately dealt with, employers should have an up to date a dignity at work/bullying and harassment policy in place, which includes an appropriate complaints procedure. Employers should also provide diversity training to all managers and staff.

[1] ADJ-00023445

[2] ADJ-00025205

[3] Section 14A, Employment Equality Acts 1998 to 2015

[4] ADJ-00024254

The content of this article is provided for information purposes only and does not constitute legal or other advice.

About the author
Katie Doyle is an Associate Solicitor on MHC’s Employment Law & Benefits team and advises on both contentious and advisory aspects of the employment relationship. Katie advises clients on a daily basis on a range of workplace issues including employment contracts and workplace policies, grievances, redundancies, disciplinary investigations and dismissals”.

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