Joanne White, Partner at Jones Cassidy Brett solicitors writes:

Legislative Background and Relevant Codes of Practice

The purpose of this briefing is to highlight issues of race discrimination in the context of disciplinary proceedings. The Race Relations (NI) Order 1997 prohibits direct and indirect discrimination, harassment and victimisation. Employers should also have regard to the Code of Practice for the elimination of racial discrimination and the promotion of equality of opportunity in employment published by the Equality Commission for Northern Ireland.

While the Code of Practice does not impose any legal obligations its provisions are admissible in evidence in any proceedings before a Tribunal or Court and a breach of the Code may be taken into account in determining whether there has been unlawful discrimination. Also relevant more generally in dealing with disciplinary matters is the LRA’s Code of Practice on Disciplinary and Grievances Procedures

Less Favourable Treatment

A dismissal or other disciplinary sanction can amount to less favourable treatment for the purposes of direct race discrimination and victimisation, where the reason for the less favourable treatment is on grounds of race or in the case of victimisation, because the person made a complaint of race discrimination or gave evidence in relation to a complaint of race discrimination.

Indirect race discrimination can occur where the application of a policy, criterion or practice by the employer puts the employee at a particular disadvantage (when compared with others not of the same race, national or ethnic origins) and which the employer cannot justify.

The Code of Practice for the elimination of race discrimination recommends that in applying disciplinary procedures consideration should be given to the possible effect of an employee’s behaviour in the following:

1. Racial abuse or racial provocation.
2. Communication and comprehension difficulties.
3. Differences in cultural backgrounds or customs.

Communication and Language Difficulties

As highlighted above, a relevant aspect to disciplinary matters that might arise is possible communication/language difficulties where the employee’s first language is not English. This may necessitate translating the disciplinary procedure, having a translator available at the investigation and disciplinary/appeal meetings, meeting with the employee to explain the content of letters and ensuring that training is undertaken on the disciplinary procedure amongst all staff, ideally as part of an induction process, so that the requirements and responsibilities set out in the procedure are properly understood (see paragraphs 14 and 57 of the LRA’s Code of Practice).

Provocation

There have also been a number of cases where employees who have been subjected to disciplinary action have alleged that they were provoked into acting uncharacteristically in response to alleged racial abuse (see Abdul-Rasheed v Chubb Security Personnel Ltd, EOR 162 and Akinde v Look Ahead Housing and Care Ltd, EOR 170). It is recommended that allegations of this nature should be investigated and considered when determining if the employee is guilty of misconduct and whether a disciplinary penalty is appropriate or a lesser penalty, given that all mitigating factors must be taken into account. Relevant circumstances will include how others have been treated in comparable situations, the timing of any incidents, the seriousness of the alleged provocation/racial abuse, whether there has been an ongoing pattern of discriminatory behaviour, and the existence of previous grievances.

Nenad Zubin v Brett Martin Ltd Case Ref 261/08IT

The case of Nenad Zubin v Brett Martin Ltd Case Ref 261/08IT has been commented on in some detail. In this case, the Claimant, who was born in Croatia but lived in Northern Ireland for twenty years, was successful in bringing a complaint of race discrimination/victimisation against his former employer which included that his dismissal following disciplinary investigation amounted to race discrimination/victimisation. The Respondent said that the Claimant was dismissed on health and safety grounds in that he had been sleeping whilst on duty. This was disputed by the Claimant.

The Tribunal’s decision was extremely lengthy and there were numerous aspects to the complaint of race discrimination including allegations of harassment raised by the Claimant against his manager predating the disciplinary investigation which formed the backdrop to the Claimant being dismissed.

In relation to the disciplinary proceedings and his ultimate dismissal, the Claimant was able to satisfy the Tribunal that the disciplinary action taken against him constituted race discrimination/victimisation. Relevant in this case was the fact that the manager who “triggered” the disciplinary process against the Claimant had been cited in the previous incidents of racial discrimination. Consequently, the Tribunal held that the Respondent should have “paused” before dismissing the Claimant, particularly as the human resources department was aware of the history of race discrimination complaints which had not been properly addressed.

The Tribunal concluded that those involved in the disciplinary process had failed to take account of the “wider picture” of alleged racial harassment and, most importantly, had treated the Claimant less favourably in comparison to another colleague from Northern Ireland who had also been witnessed by the same manager sleeping on shift, where no action was taken.