Thenext time your workforce discusses the latest England, Scotland or Walesnational teams, beware. As david morgan reports, a recent decision on nationalorigins could have a major impact on employers and the approach taken byemployment tribunals in race discrimination cases throughout the UK Afterthe recent controversy that surrounded Anne Robinson’s comments regarding theWelsh on the BBC television programme Room 101, a recent decision of theScottish Court of Session involving BBC Scotland is particularly significant.The Broadcasting Standards Commission may have cleared Robinson of racism,taking account of “Wales’ position as a constituent nation of the UnitedKingdom” but, had it applied the Court of Session’s approach to thedefinition of “national origins” in the Race Relations Act 1976, itmight have come to a different view.Inlight of the court’s landmark ruling, employers should review equalopportunities policies and practices, to take into account the fact that racediscrimination now embraces intra-UK discrimination.Backgroundto the caseInBBC Scotland v Souster, 2001, IRLR 150, the Court of Session (the Scottishequivalent of the Court of Appeal) ruled that the English and Scots aredifferent racial groups for the purposes of the Act, by reference to theirnational (but not ethnic) origins. The same approach is most likely to be takenin respect of the Welsh and Irish, despite the exclusion from the 2001 UKCensus of the Welsh as a distinct category of national origin (contrary to therecommendations of the Commission for Racial Equality). TheSouster case is now authority for the proposition that it is unlawful racediscrimination to subject an employee to less favourable treatment by reason ofthe fact that he or she is Scottish or English. The court adopted an expansiveapproach to the meaning of “national origins” and established asubjective test, despite the arguments by BBC Scotland that the Act should be restrictedto the concept of nationality or citizenship. Theapplicant, Mark Souster, an English sports journalist, was employed by BBCScotland on a succession of fixed-term contracts as a presenter of RugbyScotland, until his contract was not renewed in 1997. When a Scottish femalewas appointed to his position, Souster claimed that a major factor in hisdismissal was his “natural origins”. He claimed racial discriminationbefore an employment tribunal, alleging that BBC Scotland had preferred a Scotfor his job.Sousterlargely founded his case upon an earlier decision of the EAT in Northern JointPolice Board v Power, 1997, IRLR 610, which had held that the Act was capableof covering discrimination between English and Scots on the grounds of race. Itfell to the Court of Session to test this decision and to clarify the issueonce and for all. Souster’s case must finally be determined on its facts by afull hearing before an employment tribunal.Nationalorigins or nationalityRejectingBBC Scotland’s argument that the earlier EAT decision of Power was wrong inthat the word “nationality” and the concept of “nationalorigins” should be restricted to nationality or citizenship in the legalsense, the court adopted a broad approach to the Act. It held that both conceptswere capable of meaning “membership of a certain nation in the sense ofrace”. The court drew from historic events such as the battle ofBannockburn, which were referred to in an earlier decision of the House ofLords, to stress the distinction between the national origins of the Scots andthe English, albeit that both share a common British citizenship.Thecourt distinguished between racial groups defined by reference to their”ethnic origins” (requiring some distinctiveness or community andlong shared cultural traditions) and by reference to “nationalorigins”. At the same time, it took a purposeful approach to interpretingthe Act. It held that, where an applicant alleges racial discrimination, theemployment tribunal may, in certain circumstances, consider the complaint onthe grounds of either ethnic or national origins, without requiring theapplicant to distinguish which of the two labels applies to his case. Thisdistinction is significant since the court went on to hold that the Scots andEnglish are not separate “ethnic groups”. Distinctivenessof communityInthe conjoined case of British Airways v Boyce, 2001, IRLR 157, which was heardat the same time as Souster before the same Court of Session, it was held thatBoyce was precluded from re-raising a separate but virtually identical claim ofrace discrimination on the grounds of his being an Englishman. His earlierclaim had already been refused on the basis that the English are not an”ethnic group” within the meaning of the Act.Whilethe Boyce decision underlines the importance of applicants presenting all theirlegal arguments at the time of raising their application, the broad approachtaken by the court in Souster is now clear authority that an applicant cannotbe constrained from a jurisdictional point of view, from presenting a racediscrimination complaint to a tribunal on the basis that he feels discriminatedagainst by reason of being Scottish, Welsh or Irish. Thecourt held that the Scottish (and, for that matter, the English) lacked thenecessary distinctiveness or community, for instance, which Sikhs or Jewsrespectively share, to be construed as an “ethnic group” as definedin the seminal case of Mandla v Dowell Lee, 1983, IRLR 209. However, despitethe lack of this racial or ethnic “flavour”, it was held that thedefinition of “national origins” is wide enough to offer protectionto both groups by reference to their individual history and geography.Whatdoes this mean for employers?Thereare practical implications to the court’s decision:–Although not specifically enshrined in the Act, the concept of harassment onracial grounds falls within the prohibition of direct racial discrimination.Employers will be vicariously liable for the unlawful actions of theiremployees, with potentially unlimited financial awards at tribunal. Employersshould be particularly mindful of the fine line between national pride andracism, for example, following a national sporting event between rival teams ofdifferent nations. One person’s “banter” may be viewed as another’sharassment–Existing equal opportunities policies should be reviewed to ensure the conceptof race discrimination includes discrimination on the grounds of nationalorigins and specifically embraces intra-UK discrimination–The subjective tests set out in the Souster case mean that the concept ofnational origin is a movable feast. The court held that national origins couldbe acquired by an employee through adoption, marriage or even through their ownperception–As an employee’s perception is by its nature subjective, employers whoundertake racial monitoring should ask employees to confirm in writing how theyview their national origin without making prejudiced assumptions. Employersshould follow the CRE guidelines that recommend separate classifications forEnglish, Irish, Scottish or Welsh–Because protection against discrimination extends to the recruitment stage,employers should be careful not to discriminate against candidates of onenational origin by placing unnecessary geographical restrictions onapplications under the guise of mobility issues. The Souster decision hasimplications for both direct and indirect race discriminationConclusionDevolutionin the UK and the creation of the Welsh Assembly and Scottish Parliament hasperhaps eroded the concept of what is “British” and is said to haveheightened national pride across the jurisdictions. TheSouster case provides welcome clarification of the application of the RaceRelations Act to potential less favourable treatment on such grounds andemployers should ensure that their practices and policies comply with what is,after all, the spirit of the legislation. nDavidMorgan is a partner in the employment unit at UK law firm McGrigor DonaldTherelevant lawInits judgement of the Souster case, the court considered the history of thelegislative regime outlawing racial discrimination in the UK, culminating inthe Race Relations Act 1976 (“the Act”) and, in particular, itsfollowing sections:–Section 1 (1), which provides that a person discriminates against another if(a) on racial grounds he treats that other less favourably than he treats orwould treat other persons; or (b) he applies to that other a requirement orcondition which has a disparate impact on the racial group to which the otherbelongs, and–Section 3 (1), which defines “racial grounds” as including colour,race, nationality or ethnic or national origins and “racial group” asa group of persons defined with reference to the same factors. 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