You may have good business reasons for making changes to your landlord business after Brexit. However, you must be very careful to make sure that you don't accidentally end up discriminating against people from European countries. Discriminating against someone because of their nationality is unlawful, whether it is intentional or not.
What happens if I change my policy on renting to Europeans?
If you change your renting policies as a result of Brexit, you need to be very careful to make sure that they still comply with equality legislation. Treating EU citizens less favourably than you treat other persons, such as local people, is likely to amount to unlawful racial discrimination under the Race Relations (Northern Ireland) Order 1997 (RRO). These rules won’t be changed by Brexit.
Under the RRO, it unlawful for a landlord or agent to discriminate on racial grounds against a person who has rented or who wants to rent a property. The landlord could be taken to court and could be ordered to pay damages to the person who was discriminated against. This can include covering financial loss as well as damages for injury to feelings.
The Equality Commission can also take legal action against someone if they have
- Advertised a property and indicated that they intend to discriminate against applicants on racial grounds
- Pressured or instructed an agent to discriminate against potential tenants on racial grounds.
What is discrimination on racial grounds?
Unlawful discrimination on racial grounds may occur in a number of ways; and it’s important to understand the difference between direct discrimination and indirect discrimination.
Direct race discrimination
This occurs where a landlord or agent treats a person less favourably than others because of that person’s actual or perceived race, colour, nationality or ethnic or national origins, or because of a person’s relationship with another person who has those characteristics
Examples of direct race discrimination include
- Showing a vacant property to a British person, but refusing to show this property to a Spanish person because of their nationality
- Deciding to evict two European tenants from a houseshare and allowing their Irish flatmates to remain, when there is no reason for this differing treatment
- Advertising a property as not being available to “foreigners”
You cannot justify direct discrimination. You can’t defend your actions by, for example, saying that you were worried about renting to European tenants because of intimidating graffiti nearby.
Indirect race discrimination:
This occurs where a landlord or agent applies a condition, criterion or practice to all persons but which is one that has the effect of causing a greater disadvantage for certain racial groups because they generally find it harder to comply with it.
Examples of indirect race discrimination include
- Asking all applicants to provide a guarantor who is a homeowner in Northern Ireland
- Insisting that applicants are able to communicate in fluent English
Even though the examples above are applied to everybody, it is going to be harder for people who are foreign nationals to satisfy these conditions and these people will have much greater difficulty meeting these requirements because of their nationality.
A policy or requirement that indirectly discriminates against someone on racial grounds will be unlawful, unless the landlord has a satisfactory and non-discriminatory reason for this requirement. The landlord or agent will need to be able to justify the policy if they are challenged at court.
This occurs where a landlord or agent subjects a person to unwanted comments or other behaviour on racial grounds that are offensive, humiliating, intimidating, hostile or degrading.
If, for example, a member of staff in a letting agency is overheard making an offensive comment about someone’s ethnic or national origin, the agency will be held liable in law for this action unless the agent can show that reasonable steps were taken to prevent such actions occurring.
Letting agents may wish to ensure that adequate procedures are in place to ensure that this type of behavior is not tolerated and to ensure that staff understand the good standards of appropriate conduct expected of them. The Equality Commission website contains advice for employers on adhering to the Race Relations Order and this includes a sample equality policy for service providers.
It is also important to remember that harassment of tenants is a criminal offence under the Private Tenancies (NI) Order 2006.