A summary of the law on race discrimination

The act covers all forms of discrimination in the workplace, including; selection for a job, training, promotion, work practices, dismissal or any other disadvantage because of race.

Race means colour, nationality, ethnic origins and national origins. Caste has also been held to fall within the definition of ethnic origin.

The act covers all forms of employment and applies to apprentices, those working under a contract of employment and the self-employed working under a contract personally to do the work. It also applies to applicants for a job.

Ex-employees can also make a claim against a former employer if they are complaining about something that was closely connected to their employment.

The employer is generally liable for acts of discrimination, harassment and victimisation in the workplace. However, individual employees may also be liable, for example, if they have subjected a colleague to harassment related to race.

Race discrimination can arise in relation to:

• The arrangements made for deciding who should be offered employment such as shortlisting and interviews
• The terms upon which employment is offered
• Refusing or deliberately omitting to offer employment
• Accessing opportunities for promotion, transfer, training or other benefits, facilities or services
• Dismissal or any other detriment.

Direct discrimination

This means treating a person less favourably than someone else because of race.

In order to determine whether someone is directly discriminated against, a comparison has to be made with someone of a different race whose circumstances are the same or not materially different.

The definition is wide enough to cover those who are also discriminated against because they are perceived to be of a particular race or because they are associated with someone of a particular race.

Examples of direct discrimination include:

• Someone who is not promoted because they are of Afro Caribbean origin
• Someone who is subject to harassment because their partner is black African
• Someone who is prevented from attending training because they are thought to be of Asian origin.

Indirect discrimination

Indirect discrimination arises where an employer applies a provision, criterion or practice (PCP) which puts those of a particular racial group at a particular disadvantage compared to those who do not share the same racial group, which the employer cannot justify.

For example, a requirement to speak English in the workplace could amount to indirect discrimination, on the basis that the requirement to speak English amounts to a PCP which puts those of a particular race at a disadvantage in comparison to those of a different race.

Employers can only justify indirect discrimination if they can show that it was “a proportionate means of achieving a legitimate aim”. This essentially requires achieving an objective assessment of the needs of the business as compared to the discriminatory effect on the worker. In the example above, an employer may be able to justify a requirement to speak English where the worker is in customer role. However, if the worker is in a role which does not involve speaking to clients or customers the employer may not be able to justify the requirement.

This is because the requirement put those of a particular racial group at a disadvantage when compared with others not of that racial group.

Harassment

This occurs when one person subjects someone else to unwanted conduct related to race, that has the purpose or effect of violating a person’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment.

The definition of harassment also applies to those subjected to unwanted conduct because of another person’s race. So, for example, an employee who is subject to offensive comments about their black African partner will be protected under the act.

Unwanted conduct includes overtly racist behaviour such as racial jokes, graffiti or other behaviour. For example, where an Indian worker requests holiday to see family in India and the manager approving the holiday refers to possibility of her being “married off” referring to a racial stereotype of forced marriage.

When determining whether conduct amounts to harassment, a tribunal will take into account the perception of that person, and whether it was reasonable for them to consider the comments or behaviour amount to harassment and all the circumstances of the case. For example, taking into account the context of the conduct and the Equality and Human Rights Commission’s Employment Code.

Victimisation

This occurs when an employer subjects a person to a detriment because they have done or may do a protected act.

A protected act includes:

• Bringing proceedings under the act or previous discrimination legislation
• Making allegations of a breach of the act or previous discrimination legislation
• Giving evidence or information in connection with proceedings that someone else has brought
• Raising a grievance or giving evidence in someone else’s grievance.

The person complaining of victimisation does not need to show they are of a particular race in order to bring a claim. However, they do have to have acted in good faith when doing a protected act. A false allegation will not amount to a protected act.

The act does not apply when the employer can show that there is an occupational requirement (OR) to do with the nature or context of the work, which means they need to recruit someone of a certain race, as long as they can show it is a proportionate means of achieving a legitimate aim. A sham or pretext will not be a proportionate means of achieving a legitimate aim.

The OR applies only to direct discrimination in recruitment, promotion, transfer and training and not to the way in which an employer affords access to benefits, facilities or services. The Equality and Human Rights Commissions Code gives the example, of recruiting a person of Somali origin on a health project to encourage older people from the Somali community to make more of health services which requires a good knowledge of the culture and language of potential users.

Case law has established that the OR provisions cannot be used by employers to implement positive discrimination, however desirable that might appear to be.

Someone complaining of discrimination has to prove, on the balance of probabilities, that their employer discriminated against them because of race. Tribunals are aware that it can be difficult for claimants to provide clear evidence of discrimination.

As a result, tribunals often have to decide cases on the basis of whether an inference of discrimination should be made from the primary facts. Those inferences are governed by section 136 of the Equality Act 2010, which has a two-stage process of proving discrimination.

• At the first stage, the tribunal must consider whether there are facts from which the court could decide, in the absence of any other explanation, that a person has been discriminated against
• At the second stage, a finding of discrimination could be rejected if the employer can show that there is a wholly non-discriminatory explanation for the treatment.

So, for example, where an employee complains that their employer failed to promote them because of race, the evidence may point to the possibility of racial discrimination. If the employer has no explanation, or if the tribunal finds their explanation is inadequate or unsatisfactory, it can infer that the discrimination was because of race and therefore unlawful.

Workers can use the ACAS (Advisory, Conciliation and Arbitration Service) guidance ‘asking and responding to questions of discrimination in the workplace’ (which is available at www. acas.org.uk) to request information from the employer which is relevant to a potential claim of discrimination.

Although the employer is not under a legal obligation to respond if the case proceeds to an employment tribunal hearing, an employment tribunal may draw an inference if the employer does not respond or its replies are evasive.

It is important in most cases to submit a written grievance in order to comply with the ACAS code of practice on disciplinary and grievances. A failure to do so can lead to a reduction in any compensation where a claim is successful.

The early conciliation certificate number must be put on the employment tribunal claim form (ET1).

If it is not, the claim form will be rejected and the claim may go out of time.

Claims must be brought within three months less one day of the act of discrimination that the person is complaining about. If the discrimination is in a form which continues for example, being excluded from a benefit or a continuing course of harassment then the three month less one day time limit runs from the last act of discrimination.

In exceptional circumstances, the three month time limit may be extended if a tribunal believes that it is just and equitable to do so.

Early conciliation applies which means that ACAS must be contacted before the tribunal time limit expires. An early conciliation form can be completed at www.acas.org.uk.

An early conciliation certificate will be issued after the period of early conciliation (which usually lasts between two and four weeks) which has an early conciliation number. This must be put on the employment tribunal claim form (ET1). If it is not, the tribunal claim form will be rejected and the claim may go out of time.

There are three remedies available to a tribunal.

Declaration

A declaration is a statement of the rights at the end of a claim, for instance where a claim succeeds a statement that a worker has been subject to direct discrimination.

Compensation

Compensation can be awarded for injury to feelings and financial losses, if there are any. This will vary from case to case and depends on the individual circumstances. There is no statutory limit to the amount of compensation which can include loss of earnings (past and future), loss of pension, interest and any other outlays associated with the discrimination. The amount of compensation for injury to feelings can vary enormously. Generally, injury to feelings fall into one of three bands: lower, middle and upper depending on the impact that the discrimination has had on the person bringing the claim.

Aggravated damages (not applicable in Scotland) can also be awarded if the tribunal is satisfied that the employer has behaved in a high-handed, malicious or insulting way which has aggravated the injury to the claimant’s feelings.

Claimants can also ask for compensation for personal injury if they have been seriously affected by the discrimination, particularly in harassment cases, which can lead to illness and depression. If so, claimants need to produce a medical report to support their claim.

Recommendations

The tribunal can make recommendations for the purpose of preventing or reducing the effect of the discrimination on the claimant of any matters to which the proceedings relate. This means that recommendations will not normally be made if the claimant has resigned or has been dismissed, which is often the case.

Examples of recommendations tribunals can make include requiring an employer to:

• Provide equality training to the person who was found to have discriminated against the individual
• Circulate the tribunals’ liability and remedy judgment to all those involved.

A tribunal cannot recommend that a person be given a job in a case where a worker successfully claimed they were discriminated against in a promotion exercise, for example. This is because that would amount to positive discrimination which is unlawful under the act (and is different to positive action).

If the employer fails without reasonable excuse to comply with a recommendation, then the tribunal may order the compensation to be increased.

Public bodies such as local government, the NHS and those carrying out public functions are under a duty to consider equality when making day-to-day decisions both in terms of service delivery and employment. This consists of a general duty and specific duties.

The general duty has three aims and requires public bodies to have due regard to the need to:

• Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the act
• Advance equality of opportunity between people from different groups
• Foster good relations between people from different groups.

The specific duties are designed to help public bodies comply with the general duty. Broadly these require specified public bodies to publish information on how the general duty is being met and to prepare and publish one or more equality objectives.

The specific duties for devolved public authorities are different in England, Wales and Scotland. Trade unions should therefore check that the employer is complying with the relevant duties.

The act allows employers to treat someone with the protected characteristic of race more favourably during the process of recruitment and promotion.

If they think that the person with the protected characteristic of race has a reasonable chance of being disadvantaged because of race (or there are fewer people with a particular protected characteristic employed), they can choose that person over someone who does not have the protected characteristic of race, provided that:

• The person is as qualified as the other candidate
• The employer does not have a recruitment or promotion policy of treating people of the underrepresented group more favourably
• The more favourable treatment is a proportionate means of achieving a legitimate aim (the legitimate aim being encouraging participation and overcoming disadvantage).

The more favourable treatment must be aimed at encouraging participation of those of a particular race who are underrepresented or put at a disadvantage.

These provisions are voluntary. A worker cannot bring a claim because the employer did not apply positive action during the recruitment or promotion process, although they may still be able to bring a claim if they were discriminated against during it.