Race discrimination

The Equality Act 2010 (the ‘EA’) covers race discrimination at work. It is a combination of years of former statutes that have been designed to prevent this kind of discrimination, including the Race Relations Act 1976, the Race Relations Amendment Act 2000 and the Race Relations Act 1976 (Amendment) Regulations 2003. The EA makes direct and indirect discrimination, harassment and victimisation on the basis of someone’s race unlawful. Whilst the discriminatory behaviour could have been carried out by an employer, that employer may also find themselves responsible for the actions of the employer’s agent, other employees, or even third parties such as customers.

The time period covered by the EA is wide and extends from the beginning of the recruitment process, through employment and, in certain situations, continues after employment has finished – for example where a discriminatory reference is provided. Vocational training is also covered by the EA.

What is ‘race’?

The definition of ‘race’ is read widely and will cover:

Colour – white, black or brown.

Nationality – for example, British.

Ethnic or national origins – an ethnic group. Ethnic groups have their own culturalcustoms, as well as a shared history that stretches back significantly into the past. There may also be a common religion, dialect and an area from which all the people in the group have come. Jews have been defined as an ethnic group but Muslims have not.

Workers and those currently undertaking apprentiships are covered by the EA, as well as a wide category of specialist employees, such as members of the House of Lords, barristers, policemen and women, vocational training providers, and office holders, such as directors. Small businesses don’t have the opportunity to opt out of the EA.

The different types of discrimination

Direct discrimination

Directly discriminatory treatment on the basis of race will arise where a person has been treated less favourably because of their race, and where this results in disadvantage or detriment to that person.

Establishing a claim for direct discrimination requires a ‘comparator’ – someone else who is in a ‘not materially different’ situation to the person complaining of discrimination, other than that person is of a different race – against whom the less favourable treatment can be compared. This can be a real or hypothetical person.

Direct discrimination may against the individual complaining of the discrimination or because of an association with someone else (for example, where a women is treated unfavourably because of her husband’s race), or where there is a perception of a certain race, whether or not that is the case (for example if someone is perceived to be non-British). Discriminatory treatment may be unconscious, so there is no need to prove that it was done on purpose and that there was a motive. There may also be race discrimination within a race – so a person of one race can discriminate against someone else of the same race.

Indirect discrimination

Indirect discrimination results from a ‘provision, criterion or practice’ that applies to the person complaining of discrimination, puts that person at a particular disadvantage compared to someone of a different race, and is not objectively justifiable (i.e. not a proportionate way of realising a legitimate aim). The ‘provision, criterion or practice’ should apply to all employees equally which is why the discrimination is indirect. For example, a requirement that employees wear certain safety gear might discriminate against employees of a certain race, for example turban-wearing Sikhs.

Harassment

Unwanted conduct towards someone that violates their dignity, or is intended to violate their dignity, is the basis of harassment. Such conduct may motivated by the race of the person complaining of discrimination, or as a result of an association with someone of a certain race by that person. For it to be harassment the conduct will also need to create an environment of hostility, offensiveness, intimidation, humiliation or degradation. Where there is harassment on more than two occasions by the same party (this could be another employee or a third party, such as a customer) and an employer knows of this but fails to take action to prevent it happening again, the employer may be held responsible for the harassment.

Victimisation

A claim for victimisation will protect someone who is involved with an EA claim (or a claim under previous legislation, such as the Race Relations Act). This may be someone who is bringing proceedings themselves, providing evidence or information relating to proceedings, making allegations of race discrimination (for example making a complaint to an employer), or doing anything by reference to the legislation to the person whose conduct is potentially discriminatory (or any other person). As long as they are done in good faith, these acts are all considered ‘protected acts’ and where someone receives unfavourable treatment as a result of doing one of these this will be victimisation.

Making a claim for race discrimination

In order to obtain information on the circumstances (policies, statistics etc) surrounding a claim for race discrimination, an employee can send a questionnaire to an employer. This can be done within 28 days of beginning a claim. If any employer doesn’t reply within eight weeks, or where the replies on the questionnaire are vague, an Employment Tribunal can infer race discrimination, so it is not advisable for employers to ignore these documents.

In terms of who has to prove what in a claim for race discrimination, once an employee has established ‘clear facts’ from which an Employment Tribunal could conclude that the discrimination has taken place, then an employer must justify the reason for the treatment – an inference of discrimination will be drawn if there is no non-race based reason given. There may also be an inference drawn if an employer does not comply with statutory Codes of Practice, such as those for dealing with a workplace complaint.

Time limits

A race discrimination claim should be made within three months less one day of the discriminatory conduct – if this has been ongoing it should be within three months less one day of the last day of that treatment. An Employment Tribunal has the power to extend this but will not do so in every case unless it is just and equitable to do so.

Claims for anything that happened before 6th April 2009 – or through that date – where a claim has been lodged with an Employment Tribunal, may be subject to different rules.

Claims for anything that happened on or before 1 October 2010 should be brought under the EA and previous legislation – the Race Relations Act.

Claims for anything that happened after 1 October 2010 should be brought under the EA.

Where a race discrimination issue is raised, there is usually a requirement to follow the ACAS Code of Practice on Discipline and Grievance Procedures(www.acas.org.uk). This aims to resolve workplace disputes before court proceedings are initiated so where a situation requires the Code is followed first, it is unwise to ignore it. There are some serious penalties for both employers and employees who don’t follow the Code – for example any compensation an employee receives from an Employment Tribunal may be reduced by up to 25%.

Where an employee feels they have been dismissed because of discrimination and want to take action against that dismissal then the same time limits and requirements to follow ACAS apply. If this took place prior to 6th April 2009 then the old rules will apply.

Remedies

An Employment Tribunal can take a number of steps if race discrimination is successfully established. The Tribunal has the option of recommending the employer take a certain course of action, the Tribunal can make a declaration of the parties’ rights, re-engage or reinstate an unfairly dismissed employee, and award compensation. Compensation is for damage directly caused by the discrimination and the amount that can be awarded is limitless. Loss of earnings (including interest) and loss of future earnings, hospitable employment, injury to health or feelings may all be taken into account when deciding how much compensation to award.

Outside of the workplace

Race discrimination is also unlawful with respect to a situation where goods, services or facilities are being provided. This may be the case where there is a refusal to provide the goods, facilities or service, or where something of a lesser quality is offered to someone of a certain race, compared to someone of a different race.

This kind of breach of the EA is considered a civil wrong, and a claim is made through a County Court. Financial compensation is awarded for injured feelings and there may be an injunction put in place to put right the wrong resulting from discriminatory conduct. Financial compensation has a limit of £600 – £6,000. A claim must be brought within six months of the conduct complained of or – where the conduct was ongoing – the last day of such conduct.