Race discrimination

 

race discrimination

What is race discrimination?

Race discrimination at work is when your employer or colleagues treat you less favourably because of your race. It is against the law. The law about race discrimination is governed by the Equality Act 2010 (EQA 2010), which provides a list of characteristics that it will protect. These are called  protected characteristics. You are protected from race discrimination, because Race is a protected characteristic under Section 9 of the Equality Act 2010 (EQA 2010). Race means your;

  • colour;
  • nationality; or
  • ethnic or national origins.

The Equality Act 2010 explanatory notes explain race further;

  • colour includes being black or white;
  • nationality includes being a British, Australian or Swiss citizen; and
  • ethnic or national origins include being from a Roma background or of Chinese heritage.

Racial Group

You have the protected characteristic of race if you fall within a particular racial group. People who have or share characteristics of colour, nationality or ethnic or national origins can be described as belonging to a particular racial group. A person can fall into more than one racial group, for example being Black British.

Caste

The case of Chandok and another v Tirkey [2015] shows that it is possible for an employee to bring a claim for race discrimination on the basis of caste. The term “caste” denotes a hereditary, endogamous (marrying within the group) community associated with a traditional occupation and ranked accordingly on a perceived scale of ritual purity. It is generally associated with South Asia, particularly India, and its diaspora. It can encompass the four classes (varnas) of Hindu tradition (the Brahmin, Kshatriya, Vaishya and Shudra communities); the thousands of regional Hindu, Sikh, Christian, Muslim or other religious groups known as jatis; and groups amongst South Asian Muslims called biradaris. Some jatis regarded as below the varna hierarchy (once termed “untouchable”) are known as Dalit.

Section 39 EQA 2010 makes it unlawful for an employer to discriminate against;

  • actual and prospective employees;
  • ex-employees;
  • apprentices;
  • some self-employed workers;
  • contract workers;
  • actual and prospective partners in a partnership or a limited liability partnership; and
  • people seeking or undertaking vocational training.

It doesn’t matter if the discrimination is done on purpose or not. What counts is whether you’re treated less favourably than someone else because of your race.

 

What is my employer NOT supposed to do under the Equality Act 2010?

You can sue your employer, your employer’s agent, contractor and your colleagues for race discrimination in the employment tribunal. You don’t need two years’ service to sue for race discrimination, and have these rights at the point of recruitment, before you have even started the job.

There are four types of race discrimination under EQA 2010. These are;

  • Direct Discrimination
  • Indirect Discrimination
  • Harassment
  • Victimisation

Part 8 EQA 2010 provides broad headings of other prohibited conduct that your employer must not carry out. Section 111 makes it unlawful to instruct, cause or induce another person to discriminate, harass or victimise a third person. The section provides a remedy for the person who receives the instruction and the intended target of the prohibited instruction whether or not the instruction is carried out, provided the recipient or intended victim suffers detriment as a result of the instruction. Section 112 makes it unlawful to help another person to discriminate.

What you can do about race discrimination

There is no need to tolerate race discrimination at work, when there is such an effective law protecting you from it. The law is only useful if you use it. If you are facing race discrimination at work, you must first raise a formal grievance with your employer, to give your employer an opportunity to put things right. At the same time, you can submit a discrimination questionnaire to your employer to help you collect evidence about the race discrimination. If you have already been fired and you think your dismissal was connected to or because of your race, you should write a Letter before Claim to your employer within three months of your dismissal. If the grievance does not resolve the matter, you should contact the free ACAS Early Conciliation service for assistance. There are strict time limits for submitting a claim to the Employment Tribunal. The time-limit is usually three months less one day for each act of race discrimination.   Contact Employee Rescue if you need help doing any of this.

 

Resources to help you deal with Race Discrimination at work

discrimination grievance        cilinniesaysebook121515b      questions procedure cover

How to write a grievance about Discrimination at Work

How to use the Questions Procedure for Discrimination Claims

How to prepare a Discrimination Schedule of Loss for the Employment Tribunal

 

Direct discrimination

Section 13 EQA 2010 says that direct discrimination is where your employer treats you less favourably than they treat others at work because;

  • of your race.
  • someone thinks you are of a particular race. This is known as discrimination by perception.
  • you are connected to a person with the protected characteristic of race, or someone wrongly thought to be of that race. This is known as discrimination by association.

Less favourable treatment means you have been treated differently to someone else who does not have your protected characteristic and you’re worse off because of it.  Section 24 says that it is irrelevant who the person discriminating against you is, so a person cannot say that they could not possibly have discriminated against you because they also have the protected characteristic of race. Being treated unreasonably on its own will not amount to direct discrimination. If your employer is able to show that they would have treated all workers just as badly, then there will have been no less favourable treatment and so, no direct discrimination.

The comparator in direct race discrimination

To get around this, you need to compare yourself with an actual or hypothetical person in the same situation as you, but who does not have your protected characteristic of race (the comparator). Section 23(2) says that the relevant circumstances of the comparator and the person with the protected characteristic must not be materially different. This means that like must be compared with like.  Your treatment must be compared with that of an actual or a hypothetical person who does not share your protected characteristic. This is how you show that you have been treated less favourably than everyone else. If there is no one to compare yourself to in the workplace, you can ask the employment tribunal to compare you to a hypothetical comparator.

An example given in the explanatory notes to EQA 2010 is a blind woman who claims that she was not shortlisted for a job involving computers because her employer wrongly assumed that blind people cannot use them. An appropriate comparator is a person who is not blind. This could be a non-disabled person or someone with a different disability, but who has the same ability to do the job as the blind woman.

Your employers defence for direct discrimination

Once you have proved direct discrimination, your employer will have no defence to it.  This was confirmed by the House of Lords in Watt (formally Carter) v Ahsan [2007]. 

Contact Employee Rescue if you believe you are being or have been directly discriminated against at work.

 

Indirect discrimination

Section 19 defines indirect discrimination as being where an apparently neutral policy, rule, practice or guideline is applied generally but particularly disadvantages people because of race. This policy, rule, practice or guideline is called “provision, criterion or practice” (PCP) in the Act.

The pool for comparison

The PCP should apply to a certain group of people in the same way no matter who they are. Within this group, some people with the protected characteristic of race may be put at a particular disadvantage by the PCP.  To prove indirect discrimination, you must show that the PCP disadvantages or would disadvantage people who share the protected characteristic of race.

The Employment statutory code of practice says that; “…. the pool should consist of the group which the provision, criterion or practice affects (or would affect) either positively or negatively, while excluding workers who are not affected by it, either positively or negatively.”

An example given in the explanatory notes to EQA 2010 is a Muslim employee who is put at a disadvantage by his employer’s practice of not allowing requests for time off work on Fridays. The comparison that must be made is in terms of the impact of that practice on non-Muslim employees in similar circumstances to whom it is (or could be) applied.

Your employers defence for indirect discrimination

Your employer can defend indirect discrimination if they are able to prove that the PCP is a “proportionate means of achieving a legitimate aim”. The courts carry out a balancing exercise between the employer’s need to use the PCP and the discrimination caused by the PCP. The Employment statutory code of practice says that the PCP should be legal, not discriminatory in itself and must represent a real, objective consideration to be regarded as a legitimate aim.

 

Harassment

Harassment is defined in section 26(1) which specifies three types of harassment. The kind of harassment that applies to race is behaviour that violates your dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment for you at work. Unwanted conduct includes “…. spoken or written words or abuse, imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks, acts affecting a person’s surroundings or other physical behaviour”. – Employment Statutory Code of practice 

Harassment extends to those who witness the harassment, but are not targets themselves. An example is a white worker who sees a black colleague being subjected to racially abusive language. The white worker could have a case of harassment if the language also causes an offensive environment for him or her.

Harassment may occur over a period of time through a series of relatively minor incidents of harassment or it may occur through one blatant incident. In either case you will have to prove that your working environment has been affected in such a way and to such a degree as to violate your dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for you.  Under the Protection from Harassment Act 1997, your employer may be vicariously liable for a course of conduct by an employee that amounts to harassment under the Act.   Section 40 makes it unlawful for an employer to harass an employee or an applicant for employment, and section 41 makes it unlawful for a principal to harass a contract worker.

 

Victimisation

Section 27 makes it unlawful for your employer to punish you because you have complained about discrimination. Victimisation is defined as subjecting you to a detriment because your employer believes that you have done or may do a “protected act”.

Protected acts are;

  • bringing proceedings under the Equality Act 2010 – s27(2)(a)
  • giving evidence or information in connection with proceedings under the Act- s27 (2)(b)
  • doing any other thing for the purposes of or in connection with the Act – s27(2)(c)
  • making an allegation (whether or not express) that your employer or another person has contravened the Act – s27(2)(d)
  • seeking or making a relevant pay disclosure, or obtaining information in a relevant pay disclosure – s77(4) 

Section 77 says that no matter what your contract says, you can talk about pay with anyone if you want to find out whether there is a connection between your pay and having (or not having) a protected characteristic. These discussions are called “relevant pay disclosures”, and you should not be discriminated against because of it.  Unlike direct discrimination, there is no comparator in victimisation. You just need to show that you were victimised because of a reason listed above.

 

Who are the people who should not discriminate against me at work?

Your employer

Sections 3940 and 83(4) make your employer liable for discrimination before, during and after employment. Before employment, employers must not discriminate against or victimise job applicants in the arrangements they make for deciding who should be offered employment, the terms on which they offer employment, or by not offering employment because of an applicant’s Trans status. During employment, your employer should not discriminate against or victimise you as to the terms of your employment, in the way they make access to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service, by dismissing you or subjecting you to any other detriment. A detriment is anything which might cause you to change your position for the worse or put you at a disadvantage, for example, being denied training or promotion. Section 108 applies the prohibition after your employment has ended.  The EHRC Guide for employers – “What equality law means for you as an Employer: dismissal, redundancy, retirement and after a worker has left” provides detailed guidance on your employer’s responsibilities.

 

Your colleagues

Your employer is also liable for discrimination by your colleagues in the course of their employment, whether or not your employer knew or approved of it. Section 109 EQA 2010 states that anything done by an employee in the course of employment must be treated as also done by the employer. This is called “vicarious liability“.  Section 110 expressly provides that an employee will be personally liable for acts of discrimination, harassment or victimisation carried out against other workers during the course of his or her employment. Section 109(4) says that the only defence an employer has is if they are able to prove that they took all reasonable steps to stop that particular conduct or other behaviors like it from happening. The words “in the course of employment” means things that your colleagues do whilst they are doing their job. Paragraph 10.46, of the Statutory Code of Practice says that; “The phrase ‘in the course of employment’ has a wide meaning: it includes acts in the workplace and may also extend to circumstances outside such as work-related social functions or business trips abroad. For example, an employer could be liable for an act of discrimination which took place during a social event organised by the employer, such as an after-work drinks party.”
The Court of Appeal described the phrase in the case of Jones v Tower Boot Company Limited [1997],  and said that it should be interpreted in the broad sense in which it is employed in everyday speech. It covers prohibited conduct which happens outside work as long as there is a direct link to work for example during a work trip, or party.  The application of the phrase would be a matter of fact for the Employment Tribunal to decide.

This means that you can sue your colleagues AS WELL AS your employer for discrimination, and your colleague will have to pay you compensation if found liable by the Employment Tribunal.  In Miles v J. Gilbank [2006],  Ms. Miles personally had to pay Ms. Gilbank £25,000 for vicious and inhumane acts which were sustained and personally encouraged by Ms. Miles who was the manager.

 

Agents

Section 109 makes your employer liable for the prohibited conduct of its agents while acting under your employer’s authority. Agents include recruitment agencies and occupational health services. Here your employer is known as “the principal”.  It makes no difference whether your employer knew about the behaviour or approved of it. In Taiwo Lana v Positive Action Training in Housing Ltd (PATH) [2001], PATH placed Ms. Lana with Walker Management as a trainee quantity surveyor. She was expected to be a trainee from 1 October 1998 until 30 September 1999. The placement was effected by two contracts. The first contract was between Ms. Lana and PATH, the second between PATH and Walker Management. When Walker Management found out that Ms. Lana was pregnant they terminated her contract. PATH then terminated its training contract with Ms. Lana because they said they did not have any work for her. The Employment Appeal Tribunal (EAT) said that PATH was liable because they had agreed to provide Taiwo with work experience, and contracted with Walker Management (which was their agent) to provide her with the work experience placement.

 

Third Parties

Your employer can also be held liable for the actions of a third party who is not an employee, if your employer does not intervene or stop the behaviour. In the case of Macdonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield School [2003]  the House of Lords said that an employer will not be liable for in such a situation unless the reason for the employer’s failure to take action is related to the employee’s protected characteristics, or the third party was acting as the employer’s agent.

 

Trustees and managers of occupational pension schemes

Discrimination, harassment and victimisation because of race by trustees and managers of occupational pension schemes is prohibited by section 61.

 

Discrimination in other work relationships

The EQA 2010 also covers work situations where your employer is different from the company or organisation that you actually work for. This company or organisation is called the “principal”. Section 41(5) describes the principal as a person who makes work available for an individual who is employed and supplied by another person (whether or not that other person is a party to the contract). An individual who works under such an arrangement is called a “contract worker”. Section 41(7) describes a contract worker as a person who is supplied to the principal and is employed by another person who is not the principal. The worker must work wholly or partly for the principal, even if they also work for their employer, but they do not need to be under the managerial power or control of the principal. An example of such a situation is where you are supplied by an employment agency. The employment agency is legally your employer and sends you out to work for another company (the principal). Contract workers also include employees who are seconded to work for another company.

Section 41 protects contract workers in the same way as employees are protected against discrimination, harassment and victimisation.  The principal (the end-user) and your legal employer both have obligations not to carry out any prohibited conduct.   It is unlawful for a principal to discriminate against or victimise a contract worker;

  • in the terms on which the principal allows the contract worker to work;
  • by not allowing the contract worker to do or continue to do the work;
  • in the way the principal affords the contract worker access to benefits in relation to contract work, or by failing to afford the contract worker access to such benefits; or
  • by subjecting the contract worker to any other detriment.

Others

There are special provisions setting out the circumstances in which other bodies may be liable for discrimination, harassment and victimisation, including:

My employer is a public authority. Do they have extra responsibilities?

Section 149, is the public sector equality duty. It says that public authorities should have due regard to the need to eliminate discrimination, harassment and victimisation and to advance equality of opportunity and foster good relations between people.

 

Situations where your employer CAN lawfully discriminate against you – Occupational requirements

In certain circumstances, it is lawful for an employer to require a job applicant or worker to have a particular protected characteristic, provided certain statutory conditions are met. Schedule 9 paragraph 1 allows discrimination in recruitment, opportunities for promotion, transfer or training, or dismissal where there is an occupational requirement for the job to be done by a person with a particular protected characteristic.

If an employer can show that a particular protected characteristic is central to a particular job, then the employer can insist that only someone who has that particular protected characteristic is suitable for the job. Your employer can only do this if it’s a proportionate means of achieving a legitimate aim.

Chapter 13 (page 174) of the Employment Statutory Code of Practice says that any exception should be interpreted restrictively, and gives examples of when and how the exception can be applied.  Where an exception allows discrimination in relation to one protected characteristic, employers must ensure that they do not discriminate in relation to other protected characteristics.

 

Organised Religion

Schedule 9 paragraph 2 allows an occupational requirement where employment or appointment to a personal or public office is for organised religion. The employer will need to prove that;

  • the employment is for the purposes of an organised religion;
  • the application of the requirement engages the compliance or non-conflict principle; and
  • the person to whom the employer applies the requirement does not meet it, or the employer has reasonable grounds for not being satisfied that the person meets it

Religion or belief

Schedule 9 paragraph 3 allows an occupational requirement where the employer has an ethos based on religion or belief and the employer can prove that;

  • the requirement of having a particular religion or belief is an occupational requirement;
  • the application of the requirement is a proportionate means of achieving a legitimate aim; and
  • the person does not meet the requirement, or the employer has reasonable grounds for not being satisfied that the person meets the requirement

National security

Section 192 allows discrimination where the purpose is to safeguard national security if the acts are proportionate for that purpose.

 

Best of the web

ACAS – Race Discrimination

CAB – Discrimination because of race

Runnymede – Race Card

Equality and Diversity Forum – Public Sector Equality Duty

 

Some Support Organisations

Race Equality First

Equality Advisory and Support Service

Cheshire, Halton & Warington Race & Equality Centre (CHAWREC)

Avon and Bristol Law Center

Northamptonshire Rights and Equality Council

Show Racism the Red Card

Somerset Racial Equality Council

European Network Against Racism

Southall Black Sisters (SBS)

York Racial Equality Network

The Council for Racial Equality in Cornwall

 

Disclaimer 

This resource is published by Employee Rescue Limited. Please note that the information and any commentary on the law contained herein is provided free of charge for information purposes only. The information and commentary does not, and is not intended to, amount to legal advice. Employee Rescue accepts no responsibility for any loss occasioned to any person acting or refraining from action as a result of the material contained in this update. Further specialist advice should be taken before relying on the contents of this summary. No part of this summary may be used, reproduced, stored in a retrieval system or transmitted in any form without the prior permission of Employee Rescue Ltd.

 

 

 

Case Study

In the Scottish case of Collins v First Quench Retailing Ltd [2003], Ms Jacqueline Collins was awarded £179,000 from her employers when the off-license she managed was robbed. Ms Collins had been the manager of Victoria Wine, run by First Quench Retailing, for about ten years. When Mrs Collins started in the shop she had been concerned about security and raised this with management. Since 1977 there had been 13 reported crimes at the shop, including five thefts, one minor assault, one serious assault and one assault with intent to rob. There were two armed robberies in 1994 and four... Read More
Ms Jacqueline Collins was awarded £179,000 from her employers when the off-license she managed was robbed.Collins v First Quench Retailing Ltd
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