Employment law – Race discrimination
Race discrimination cases are often not straightforward as it is rare for employers to openly treat people differently because of their race. Therefore, it is the task of an employment tribunal to decide whether the real reason for different or unfair treatment was in fact, race. The governing legislation is under the Equality Act 2010 (the “Act”).
How is ‘race’ defined under the Act?
For the purposes of the Act, ‘race’ included colour, nationality and ethnic or national origins.
Who is covered by the Act?
The Act applies to all employees (fixed and indefinite term), job applicants, trainees, contract workers, office holders (including company directors and partners), those who are on secondment and the self-employed. The Act covers all areas of employment including recruitment, selection and promotion, the provision of training, the provision of benefits, retirement and occupational pensions.
What is race discrimination?
Race discrimination is where you are treated unequally because of your race, your perceived race or the race of someone with whom you associate. The Act has deemed that race is a ‘protected characteristic’ and, accordingly, race discrimination is unlawful. Therefore, the law is designed to protect employees and workers of any race during all aspects of employment.
Race discrimination can arise in any of four ways:
- direct discrimination
- indirect discrimination
Such discrimination can apply at interview stage, in the terms upon which you are being offered employment (or indeed whether you are offered employment at all), in promotion and transfer opportunities, when being dismissed or subjected to any other detriment.
A person discriminates against another by treating that other less favourably than another person. Where such discrimination is on racial grounds, it is unlawful. You can be racially discriminated against because of your own race, your perceived race or the race of someone with whom you associate. This apparently straightforward position often, however, creates difficulty for tribunals. Employers will almost always deny that the alleged discrimination had anything to do with race. In this situation the tribunal has to find the true and effective reason for the employer’s action. The motive of an employer is irrelevant and the defence of justification is not available for direct discrimination.
Indirect discrimination is where an employer operates a policy which, on the face of it, has nothing to do with race but in practice the effect is to disadvantage ethnic minorities. An employer discriminates against an employee when it applies a policy which applies to all workers, but which:
- puts or would put persons from one racial group at a particular disadvantage when compared to other persons;
- which cannot be shown to be a proportionate means of achieving a legitimate aim.
An example of indirect discrimination is that all male members of staff must be clean shaven, which puts members of certain religious sects at a disadvantage.
Indirect racial discrimination can under the legislation be “objectively justified”, however the onus is on the employer to prove that the discrimination is a “proportionate means of achieving a legitimate aim”. The legislation provides for specific situations in which race discrimination in the employment field is allowed, for example in relation to actors, models, personal welfare services and jobs involving work where food or drink is provided for which a person of a racial group is required for authenticity. For example, an Indian waiter is required for an Indian restaurant or someone from a specific ethnic minority is needed to promote the welfare of youngsters within that ethnic group.
Harassment occurs when, on the grounds of race or ethnic or national origins, the harasser engages in unwanted conduct which has the purpose or effect of (a) violating the victim’s dignity or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim. Conduct shall be regarded as having the effect of violating someone’s dignity or creating an intimidating environment only if in all the circumstances, including the victim’s perception, it could reasonably be seen as having that effect.
Therefore, the definition of harassment is wide enough to include most types of harassment including abusive language, excessive monitoring of work, excessive criticism of someone’s work etc. However, the concept of the victim’s ‘reasonableness’ may in some cases make it difficult to win such cases.
It is possible to claim harassment even where it is not directed at the claimant personally. For example, a white employee can claim under this heading if he has witnessed and been offended by the racial discrimination of a black colleague.
Additionally, the Equality Act has deemed that the employer is potentially liable for the racial harassment of their staff by third parties, i.e. people they don’t employ, such as clients, customers, patients or suppliers. Therefore, if your employer knew or ought to have known that you have been harassed in the course of your employment on at least 2 previous occasions by a third party (not necessarily the same third party or the same form of harassment on each occasion) and has failed to take reasonable steps to prevent it happening again, he may be liable under the Equality Act.
This is where you are treated less favourably as a result of you having made, tried to make, helped someone else to make or assumed to have made, a complaint or grievance of race discrimination under the Act. There is no longer a need to compare your treatment to an employee who has not done one of the above.
Who is liable under the Act?
Liability for race discrimination usually lies with the employer and/or any other employee who is found to have discriminated.
Employers will be liable for the discriminatory acts of employees where those employees are acting in the course of their employment. This is known as vicarious liability. As mentioned above, the employer will also be liable for the acts of third parties in certain circumstances.
Where the acts complained of are done by another employee, it is usually wise to bring the employment tribunal application against both the employee as well as the employer.
Employers have a defence to a complaint of discrimination based on vicarious liability and third party harassment if they can prove that they took all reasonably practicable steps to prevent the discrimination. It is rare for employers to be able to succeed with this defence, but if they do, in the case of vicarious liability, the claim can continue
Proof of discrimination
It is for the person making the claim to establish that discrimination has occurred. The employee has to prove discrimination by the employer ‘on the balance of probabilities’.
This means that, although a tribunal might have doubts as to whether the employer discriminated, as long as the tribunal more than half believes that they have it must decide in favour of the employee.
Once an employee has established facts from which it may be presumed that discrimination has occurred, it is up to the employer to prove that no such discrimination has in fact occurred.
It is unusual to find direct evidence of racial discrimination. Few employers are prepared to admit discrimination and those who are aware of the law may have taken steps to appear to be acting lawfully.
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 an 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.
Raising a grievance
If you are still in employment and you cannot resolve the matter informally with your line manager, then it is best to first lodge an internal grievance. Your employer will then be obliged to convene a meeting without unreasonable delay to discuss your grievance. You may, however, still be able to bring a claim in the Employment Tribunal whilst you are still employed.
If you have already been dismissed and you think you have been discriminated against, you can lodge a claim for unfair dismissal and/or discrimination in the Employment Tribunal.
Remedies at a tribunal
An employment tribunal can award one or more of three remedies if it finds that an individual has been a victim of race discrimination:
- a declaration which is an order declaring what the rights of the parties are;
- a recommendation that the employer should take certain steps to remove or reduce the discrimination.
Unlike in unfair dismissal, there is no ceiling on the amount of compensation a tribunal can award for race discrimination. Compensation normally includes an award for injury to feelings and an award to take into account any loss suffered, for example loss of wages or pension. The awards for injury to feelings can vary, however many thousands of pounds is not uncommon. The Court of Appeal have set out 3 bands of compensation guidelines for injury to feelings, depending on the seriousness of the case. These are commonly known as the ” Vento” guidelines, and from 6th April 2021, they are:
TOP BAND FOR THE MOST SERIOUS CASES: £27,400 – £45,600 (although it can exceed this in exceptional cases);
MIDDLE BAND: £9,100 to £27,400
LOWER BAND FOR LESS SERIOUS CASES (e.g. a one-off or isolated incident of discrimination): £900 – £9,100
The Act imposes strict time limits throughout the procedure for bringing a case for race discrimination. Good cases can be lost before they start through hesitation or delay.
The time limit for making a claim for racial discrimination to the employment tribunal is three months from the act of discrimination. It is now mandatory to go through ACAS’s early conciliation scheme before you can submit a claim to the tribunal.
A discriminatory act may extend over a period of time so that it may be a continuing act if it takes the form of some policy, rule or practice in accordance with which decisions are taken by the employer. In these circumstances the three month period runs from the end of the continuing act. Please click here for more information.
Tribunals do have discretion to allow late claims to proceed, but there must be exceptional reasons why a claim was not made in time.