Racial discrimination

21 October 2003 by
Racial discrimination

Racial discrimination occurs when someone is treated less favourably on grounds of their colour, race, nationality or national or ethnic origin. It is not necessary to prove discrimination was intended: it is sufficient to show only that the outcome of the action resulted in less favourable treatment.

The Race Relations Act 1976 as amended by the Race Relations (Amendment) Act 2000 covers all employers, regardless of size, and protects employees, including vocational trainees and contract workers.

What areas do I have to look out for?

All aspects of employment are covered by the act, including recruitment, selection, promotion, transfer, training, pay and benefits, redundancy, dismissal and terms and conditions of work. Employment agencies must not discriminate on racial grounds against people seeking work. Discrimination must not take place in job interviews or advertisements. Trade unions must not discriminate against their members or those wishing to become members. It is also an offence to pressure or instruct someone else to discriminate.

The act applies to anyone providing goods, facilities or services to the public, including hotels, bars, restaurants and pubs. It is unlawful for any such organisations to discriminate by refusing their services, or giving their services on less favourable terms, to people of other racial groups.

What about racism from other staff - am I responsible?

Anything unlawful under the Race Relations Act committed by an employee in the course of his employment is treated as having been done by his employer, whether or not it was done with the employer's knowledge or approval.

Liability may extend beyond the workplace where a discriminatory act is connected with employment - for example, an act at a works social gathering. The employer will have a defence only if they can prove that they took practical steps to prevent the employee from doing it. This could be done by, for example, issuing a written policy to employees on race discrimination, giving racial awareness training, or taking steps to discipline any relevant employees.

What about discrimination by non-employees to staff?

Where a third party subjects employees to discrimination, the employer is also liable if he had sufficient control to prevent or reduce the extent of the discrimination, but failed to do so.

In the case of Burton vs De Vere Hotels, racially offensive remarks and jokes made by Bernard Manning at a function at a hotel where two black waitresses worked amounted to racial harassment on the part of their employer. Good employment practices could have prevented the harassment or reduced the extent of it.

Should I be employing a certain number of workers of minority races?

The act does not allow positive discrimination in this way. It would be discriminatory and unlawful.

However, employers can take positive action to prevent or overcome discrimination. If no one from a particular racial group, or only very few persons from that racial group, have been doing a certain type of work over the previous 12 months, then it is lawful to offer training only for people from that racial group or to encourage people from that racial group to apply.

For example, an employer with no black chefs but a high proportion of black kitchen workers can arrange training for black workers seeking promotion, encourage black workers to apply for jobs at that grade when advertising vacancies, or print leaflets in relevant minority languages to encourage them to apply. The law does not compel employers to take positive action, but it allows them to do so.

What's the difference between direct and indirect discrimination?

Direct racial discrimination is less favourable treatment on grounds of race. To prove direct discrimination requires a "comparator", ie, someone from a different racial group who, in similar circumstances, has been treated more favourably. Racist abuse and harassment are forms of direct discrimination.

Indirect racial discrimination occurs when an employer imposes a requirement or condition with which people from a certain racial group are less likely to be able to comply. Such discrimination may be defensible if the criteria can be justified on grounds other than race. For example, if an employer for no good reason requires applicants to be wine connoisseurs, that requirement may be considered discriminatory against Muslims, who are forbidden by their religion to drink alcohol. However, such a requirement may not be discriminatory in considering applicants for the job of a wine waiter whose duties include tasting of wine.

Are there any other legitimate grounds for discrimination?

Discrimination is also not unlawful where race is a "genuine occupational qualification" for the job. For example, if a Caribbean restaurant employs only Caribbean staff for the purposes of authenticity, this may be a genuine occupational qualification.

What's the role of the Commission for Racial Equality?

The Commission for Racial Equality (CRE) is a publicly funded, non-governmental body established to tackle racial discrimination and promote racial equality. It provides information and advice to people who think they have suffered racial discrimination or harassment and works with businesses to promote policies and practices that will help ensure equal treatment for all. It campaigns to raise awareness of race issues and ensures all new laws take full account of the Race Relations Act. It may also prosecute employers who publish discriminatory advertisements.

What happens if I am accused of discrimination?

A person may complain of discrimination relating to employment to an employment tribunal within three months of it happening. The tribunal may consider a complaint which is out of time, if in all the circumstances of the case it considers that it is just and equitable to do so. This is likely to be the case where a policy of ongoing discrimination seems evident.

What are the penalties?

An employment tribunal can:

  • Make a declaration that discrimination has occurred.
  • Award compensation. Compensation may only be awarded in cases of indirect discrimination where the tribunal is satisfied that the employer intended the discrimination. This may include damages for injured feelings and compensation for loss of opportunity in the labour market going beyond actual loss of wages.
  • Recommend remedial action - namely, that the employer can take practical action to stop or reduce the adverse effect of any discrimination.

The CRE may also conduct investigations into alleged discriminatory practices and impose a non-discrimination notice requiring the employer not to commit any such acts and, where necessary, to implement changes in practices or arrangements.

by Jonathan Exten-Wright
Jonathan Exten-Wright is a partner in the employment department of lawyers DLA

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