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Case reporting – definition of Travellers?
PC Davies's ethnic origin is Romany, a group also widely referred to as 'gypsies' (also spelt 'gipsies') or Travellers.
One of the issues arising in the case was the meaning of the word 'Traveller'. Contrary to what has been reported in sections of the press, PC Davies was not complaining that the term 'Traveller' is offensive – indeed, he refers to himself as an 'English Traveller'. The issue in question was whether the term 'Traveller', when used by Thames Valley Police, referred to a 'racial group' for the purpose of Section 9 of the Equality Act 2010.
In Mandla v. Dowell Lee [1983] 2 A.C. 548, H.L.(E), the House of Lords set down the test for determining the meaning of the terms "ethnic origins" and "ethnic group" under the Race Relations Act 1976 (now replaced by the Equality Act 2010). It was held that there are two essential criteria: "(1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance".
Following Mandla, the Court of Appeal held in Commission for Racial Equality –v- Dutton 1 All ER 306 [1989] that Romany Gypsies are an ethnic group for the purposes of anti-discrimination law.
The court, however, went on to find that the term 'traveller' is not synonymous with the word 'gypsy'. In that case, it was held that signs marked "No Travellers" outside a public house did not discriminate directly against Romany people (although it was said the signs might be indirect race discrimination – but this issue did not fall to be determined in that case).
The judge commented "[T]he meaning of the word 'traveller' depends on the context in which it is being used." In the context of that case, it was held that 'traveller' meant "persons who are currently leading a nomadic way of life, living in tents or caravans or other vehicles. Thus the notices embrace gipsies who are living in that way. But the class of persons excluded from the [public house] is not confined to gipsies. The prohibited class includes all those of a nomadic way of life mentioned above."
In cases where offensive slang terms such as 'Pikey' are used in reference to persons of Romany origin, the issue will be relatively straightforward, and it should be easy to establish that such terms refer to a racial group. For example, in Coney v Ceva Logistics UK Ltd and anor ET Case No.1306820/08 the Employment Tribunal found that the term 'pikey' is a derogatory term referring to a traveller initially of Romany origin but expanded in recent use to include those seen as Irish Travellers, or indeed any traveller. However, it concluded that the pejorative nature of the word remains inextricably linked to its origin, which is undoubtedly racial.
It should be noted that Irish Travellers are a distinct ethnic group in their own right. Although Romany and Irish Travellers share many common characteristics, have strong ties and are often referred to collectively as though they formed a single community (the GRT or Gypsy, Romany and Traveller community) the two groups are not synonymous. In O'Leary & Others v. Allied Domecq & Others, unreported 29 August 2000, the Central London County Court applied Dutton in holding that Irish Travellers also constitute an ethnic minority within anti-discrimination legislation. As a decision of a lower court, this does not set a precedent and is not binding on other courts or tribunals. It has stood, however, unchallenged since August 2000 and it appears that, in practice, the UK Government and public authorities now accept that position and it also likely that other courts and tribunals also would.
Following Dutton, in cases involving derogatory or offensive treatment directed at 'Travellers' the issue will be less straightforward, and such treatment will not automatically amount to racial harassment or direct race discrimination. In each case it will depend on what the alleged discriminator means by 'Travellers' and, specifically whether the term is used to refer to a 'particular racial group'.
Travelling, although historically of great significance, is only one part of the identity of Irish and Romany Travellers, and many are now to some degree 'settled'. Whether or not they are nomadic, Romany and Irish Travellers remain protected by the Equality Act 2010 as racial groups.
Conversely there are other groups leading a nomadic way of life who are not protected; the word 'Traveller' is sometimes used to describe so-called "New" or "New Age" Travellers – this group is not a legally recognised ethnic minority because its history only goes back to the 1960s, and therefore it does not meet the Mandla test.
It was argued by PC Davies that, in the context of his case, the term 'Travellers' was being used to refer to a group consisting exclusively of Irish Travellers and Romany Travellers – i.e. two similar but distinct 'racial groups'.
In cases where the term is used in this way, rather than in the broader sense of all persons leading a nomadic way of life, then references to 'Travellers' will be references to a racial group. Section 13(4) of the Equality Act 2010 will apply "The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group."
Finally, it should be noted that in cases where less favourable treatment is directed against 'Travellers' in the broader sense, it may be arguable that this amounts to indirect discrimination against Romanies, since the proportion of persons of Romany ethnic origin who come within the umbrella term 'Traveller' is considerably larger that the proportion of people who are not of Romany origin.
Rhydian Reeves, Employment Solicitor
Author, Rhydian Reeves, Uncategorized,
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