Race discrimination

Racial discrimination occurs where one person is treated less favourably than another person and the reason for that less favourable treatment is related to their colour, nationality or ethnic or national origins.

What is racial discrimination?

The Race Relations Act 1976 (as amended by the Race Relations Amendment Act 2000) provides that it is unlawful for an employer to discriminate against an employee on the grounds of race. This includes:

• colour
• nationality, and
• ethnic or national origins.

This does not mean merely black or ethnic minority groups but all nationalities and racial groups. Moreover, the discrimination does not have to be intentional and does not even have to be directed at the person complaining of the discrimination – the mere fact that discrimination has occurred is sufficient.

In addition to dealing with instances of specific discrimination, the Act also places a duty upon certain public bodies such as hospitals, local authorities and the police, to take active steps to promote racial equality and to prevent discrimination from occurring within the workplace.

Race discrimination law affects almost every area of work including recruitment, promotion, dismissal, redundancy, terms of employment and how an employee is treated whilst at work. Thus it is equally unlawful for an employer to discriminate on grounds of race in the recruitment and selection of new employees as it is in the decision as to whom to make redundant.

The types of racial discrimination

There are essentially four types of discrimination, although it should be noted that they need not be mutually exclusive. They are

direct discrimination

Direct discrimination occurs where one person intentionally discriminates against another person by, for example, not considering them for a job or not promoting them on racial grounds

indirect discrimination

Indirect discrimination occurs where a provision, criterion, practice, requirement or condition – in other words working practices or procedures – which is applied to everyone has the effect of placing a person of a particular racial group at a disadvantage as compared with those not from that racial group and the provision, criterion, etc. Cannot be shown to be a proportionate means for achieving a legitimate business aim. For example, if an employer requires everyone to dress in the same manner but that manner is not acceptable to those of a particular ethnic or national group.

harassment

Harassment takes places where one person subjects another to unwanted conduct that has the purpose or effect of creating a hostile, offensive or humiliating environment. The intention of the person committing the harassment is irrelevant – the fact that the victim feels themselves to be harassed is adequate provided that the actions or words were capable of causing harassment. For example if a person tells racist jokes in the workplace and this causes another person to feel harassed, then that is sufficient, even if the teller of the jokes did not intend to cause harassment.

victimisation

For the purposes of discrimination law, victimisation has a special meaning that is not as wide as when the word is used outside of its legal context. Victimisation for the purposes of discrimination law occurs where a person is treated less favourably and the reason for that less favourable treatment is because they have asserted their rights not to be discriminated against, assisted another person to assert those rights or given evidence in a tribunal or court in relation to the assertion of such a right.

Is discrimination ever justified?

There are a number of limited circumstances where an employer might be justified in discriminating against a particular employee or potential employee. These are very much exceptions to the general law against discriminating and an employer should be wary of relying upon them unless they are sure of their ground. Those exceptions are as follows:

Private households

Employment in private households are exempted from some of the provisions of the race discrimination legislation

Genuine Occupation Qualifications and Requirements

For some jobs it is possible to require that an applicant be of a particular race. This however is limited to areas such as personal welfare services, jobs as actors or models or jobs where a person of a particular race is required for reasons of authenticity – for example work in a Chinese or Indian restaurant.

Positive action

Whilst positive discrimination is not permitted, there may be circumstances where an employer can take positive action. This is likely to arise in cases where the employer recognises that there is an imbalance in the ethnic or racial make-up of the business and encourages those of a particular racial group to apply for jobs or encourages or assists those of a particular group to train for jobs. It must be noted however, that when the time comes for interviews and appointments the normal rules apply and that the best person for the job must be appointed, irrespective of racial background.

What to do if you are an employee

If you are an employee and you believe you are being discriminated against, whether it is by a colleague or by a manager, then you should speak immediately to your line manager and outline your concerns. If it is your line manager who is discriminating against you then you should should speak to their boss or, if it has one, to the HR department.

If your employer has an equal opportunities policy then this may contain provisions and procedures for those who are being discriminated against and in these cases these should be followed. If you have not been supplied with a copy of that policy you should ask for one.

In the event that your employer fails to take the matter seriously or will not help, then you may need to take the matter forward with the firm’s grievance procedure. If this does not produce a satisfactory outcome then, and only then, should you think about taking the matter to an employment tribunal.

A complaint is made on form ET1 which you must send to the Regional Office of Employment Tribunals. You can obtain a form ET1 from a number of places including Jobcentres, the local employment tribunal or online (www.employmenttribunals.gov.uk/claim_form_et1.asp). The complaint must be made within three months, less one day, from the date upon which the discrimination first happened or, if you have gone through the grievance procedure, six months less one day. Note, however, that an employer must be given at least one month to sort out your grievance before you can proceed to the Employment Tribunal so it is vital that you complain to your employer and start the grievance process as soon as possible.

Click here for more information on taking matters to the Employment Tribunal or contact employmentlawhelp on 0844 8044 800 and we will be pleased to help you.

Race discrimination and the employer

There are a number of factors which employers should bear in mind in relation to race discrimination - and indeed in relation to discrimination generally - and which could affect not only the manner in which they handle potential racial discrimination matters within the business, but the business as a whole. Employmentlawhelp is happy to advise fully on such factors.

In particular, employers should bear the following points in mind:

• Whilst it is for the person being discriminated against to establish that factors exist from which it could be concluded that the discrimination has taken place, once it has been established it will only need to be proven on a “balance of probabilities”, so even if the Employment Tribunal only half believe the employee then they are likely to find in the employees favour. Moreover, once it has been established that those factors exist then the onus is placed upon you as employer to show that the acts of discrimination did not occur
• Showing that discrimination did not take place is likely to require more on the part of the employer than a mere assertion that it did not happen. Some kind of documentary or procedural evidence may be required in order to back up the rebuttal of the claim. Thus, for example, if an employee complains they were not promoted on racial grounds then the employer may need to show the criteria which are applied to promotions and the reasons other than racial ones as to why that particular employee was not promoted.

Whether or not discrimination can be proved will often depend on what inferences a tribunal can draw from the primary facts. Where, for example, an employee complains of failure to promote on racial grounds the evidence may point to the possibility of racial discrimination. In those circumstances the tribunal may look to the employer for a explanation that proves there was no discrimination.

If no such explanation is put forward, or if the tribunal finds the supposed explanation inadequate or unsatisfactory, it is open to the tribunal to infer that the discrimination was on racial grounds.

employmentlawhelp will be pleased to give you advice on racial discrimination. Call us on 0844 8044 800 or contact an employment law solicitor.