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Race Discrimination

Race Discrimination

Race discrimination is a scourge which is morally as well as legally unacceptable. In some cases, an obvious comment, witnessed, may lead to a claim, but discrimination is often more subtle and difficult to prove.

We are experts in helping employees find out the true position.

Direct race discrimination under the Equality Act

  • Where  a person is treated less favourably  and suffers a detriment.
  • “Racial grounds” means colour, race, nationality, or ethnic or national origins.
  • Discrimination can occur even when unintentional. Detriment means treatment of a kind that a reasonable person would or might take the view that in all the circumstances s/he had been disadvantaged. An unjustified sense of grievance cannot amount to a detriment. It is not necessary to demonstrate some physical or economic consequence.
  • Direct discrimination cannot be justified.

Indirect race discrimination

  • This occurs where a requirement or condition is applied to all racial groups but to the detriment of a considerably larger proportion of one racial group compared to others, and where it is not justifiable, irrespective of colour or nationality to apply that condition or practice.
  • Occurs where a provision, criterion or practice puts or would put one racial group at a particular disadvantage than others, and it cannot be shown that it is a proportionate means of achieving a legitimate aim, irrespective of race, ethnic or national origins, to apply that provision, criterion or practice.
  • Justification must be on objective grounds with an objective balance between the discriminatory effect and the reasonable needs of the employer, there is no margin of appreciation.
  • Indirect discrimination occurs where an individual’s employment is subject to an unjustified condition, which on racial grounds a person finds more difficult to meet although on the face of it, the requirement or condition, or provision, criterion or practice is “neutral”. For example – A requirement for GCSE English as a selection criterion. This would have disproportionate adverse impact on people educated overseas and may not be justified if all that is needed is to demonstrate a reasonable level of literacy or a requirement that all males have no facial hair. This would have a disproportionate adverse impact on Sikhs who traditionally do not cut their hair.
  • In determining whether there has been a detriment, it will be necessary to establish a “pool” of people for comparison on a like-for-like basis of those that have and have not been affected by the requirement or condition, or provision, criterion or practice.

Victimisation

This occurs where an individual is treated less favourably than another individual whose circumstances are the same because s/he has taken action to assert their statutory rights or assisted a colleague with information in that regard under the RRA and that individual suffers a detriment.

Harassment

It will be unlawful to harass a person for a reason which relates to that person’s race, in engaging in unwanted conduct which has the purpose or effect of violating the person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Such conduct will only amount to harassment if in all the circumstances, in particular the perception of the person, it should reasonably be considered as having that purpose or effect.

When does race discrimination apply?

  • It applies before, during and after employment.
  • Where an individual applies for a job, it is unlawful for an employer to discriminate against him/her on racial grounds in the arrangements it makes for determining who should be offered the job, in the terms on which the individual is offered employment or by refusing to offer the individual employment.
  • During employment, it is unlawful for an employer to discriminate in the terms of employment it offers to that person, opportunities for promotion, transfer, training or benefits or by dismissing that person or subjecting them to any other detriment.
  • If an employer discriminates against somebody after employment, eg by refusing to provide them with a reference, this will also be contrary to law.
  • The legislation also protects people who are not “employees” in the sense required for some other employment rights, such as the right not to be unfairly dismissed. It protects people engaged under a contract personally to execute work or labour. Contract workers whose labour is supplied by their employer to another person (the principal) are protected. An employer will be liable for the actions of its employees unless it can show that it took steps that were reasonably practicable to prevent the employee from doing the discriminatory act.

Justification?

An employer may be able to justify a claim of direct discrimination if it can show that the individual’s race was ‘a genuine occupational qualification’ for the job in question in respect of who should be offered the job or  in refusing to employ the individual.

What should employers be doing?

Employers should have an equal opportunities policy and a harassment policy and provide training to both employees and management on such policies and the implications for them and their treatment of others.

Contact our race discrimination solicitors today

Have you experienced discrimination at work on the basis of your race, nationality or ethnic background? At IBB Solicitors, our employment law experts have experience supporting cases of workplace discrimination. Contact us today on 03456 381381 or email employment@ibblaw.co.uk.

Marc Jones

Marc Jones

Partner marc.jones@ibblaw.co.uk 01895 201719