Just because Iím English! Nationality discrimination in the City

The recent reports of the Employment Tribunal claim brought by a ìBritishî former employee of a Korean-owned investment house provide a useful reminder of the complexity but also the extent of the laws prohibiting ëdiscriminationí in the work place on the grounds of a personís ìcolour, race, nationality or ethnic or national originsî.

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Christine Jones has reportedly alleged that she was forced out of her job at Woori Investment and Securities after being ìvictimisedî for complaining about ìracial biasî. Apparently she is claiming a ìsix figureî sum for loss of career opportunity having been driven out following a 10 year career in which she alleges that along with others she was discriminated against in terms of pay, benefits and opportunities for not being Korean.

Claims of ënationalityí discrimination in the City and indeed the wider economy are not uncommon. In 2000 Mark Souster, an English rugby commentator established in his claim against BBC Scotland that an English employee (or applicant for employment) could be discriminated against by a Scottish employer on the grounds of his nationality. The meaning of ìnationalityî is not limited by discrimination law to the concept of nationality in the common legal sense of citizenship which one acquires at birth. Therefore, the Scots, English, Welsh and Irish are protected in terms of
their ìnational originî and ìracial groupî. Whether Christine Jones is English or half Welsh and half Irish she is protected from discrimination on racial grounds by virtue of being British as that is her nationality. The same would apply if she merely acquired English or more accurately British nationality or because she was perceived to be English or British.

In another case reported in 2000 (M Bourgeois ñv- Saga Petroleum) the appeal court upheld a tribunalís finding that a policy of ìNorwegianisationî of the Companyís senior management had resulted in racial discrimination against one of its non-Norwegian managers. The tribunal found that the policy of ensuring that Saga Petroleumís senior management was entirely Norwegian had been a substantial and effective cause of Mr Bourgeoisí dismissal and that non-Norwegian managers had been demoted.

In practice it is common for claimants alleging ìrace discriminationî to cast the claim broadly to include, for example in the case of Mr Okonu in Okonu ñv- G4S Security Services 2008 his ethnic origin (black African) or national origin (Nigerian origin) and colour (black). However a claimant such as Mr Okonu or Christine Jones must specify from the outset on which racial ground or grounds ñ colour, race, nationality or ethnic or national origin ñ they rely on. Colour is of course different from national origin. The Claimant must be precise and the Respondent employer is entitled to know the precise grounds of the case it has to meet. Apart from anything else the tribunal will have to find an actual comparator ñ a Norwegian manager, or a Korean employee in a materially similar position.

Intriguingly the law is in a bit of a mess when it comes to the burden of proof in showing ërace, ethnic and national originí discrimination on the one hand and ënationality or colour discriminationí on the other hand. The onerous shifting of the burden of proof onto the employer (who must come up with a genuine and adequate explanation for the less favourable treatment complained about) does not arise in the latter cases of nationality or colour discrimination. There is a two tier system in place for proof in the general category of Race Relations Act claims and Woori Investmentís approach to the defence of the claim will depend on the precise way in which Christine Jones puts her claim ñ whether it is in terms of her ìnationalityî (British), colour or national origin.

One of Ms Jonesí complaints is ëvictimisationí which is distinctly different from ìdirect or indirect race discriminationî. She claims that she was driven out of the organisation because she was victimised having had the temerity to complain previously of the perceived (whether right or wrong) race bias on the part of the Korean employer. A recent case (Lucien Oyarce ñv- Cheshire Council 2008) has established the burden of proof will remain on Christine Jones and again not switch to the Korean employer in respect of this bit of her claim.

Clear? What is certain is that unless Woori Investment have an equal opportunities policy which they can demonstrate they have implemented and rolled out to managers and staff they will start 1-0 down and find it difficult to recover.

David Ludlow is a partner in the Employment Law Team at Barlow Robbins LLP Solicitors in Woking (davidludlow@barlowrobbins.com)