Race discrimination in the workplace

Background

In the UK, under the Equality Act 2010 (the Act), individuals are protected against discrimination in the workplace on grounds of disability, race, sex, sexual orientation, religion or belief, age, pregnancy, maternity, gender reassignment and marital status. Race includes colour, nationality, ethnic origins and national origins.

The EHRC Code of Practice (the Code) clarifies that a person may fall into more than one racial group.  The Code gives the example of “black Britons” (those who are both black and who are British Citizens).

Discrimination and the EHRC Code of Practice

Protection is given to a wider group of individuals than the traditional “employee”.  Anyone who is contracted to do work personally will also be protected.  It is important to note that the protection goes beyond those actually in work, also protecting applicants for jobs and in certain circumstances, former workers.  

Right to work checks

Employers need to ensure they do not make assumptions based on race when carrying out right to work checks.  The Home Office has issued a Code of Practice to help employers and a failure to follow the Code can be taken into account by a tribunal in deciding whether there has been discrimination.  For example, companies need to ensure that they make appropriate checks in relation to all potential employees, not just those who appear to be of non-British descent.

Types of race discrimination

Race discrimination can take place in the following ways:

• Direct discrimination:  treating a job applicant or employee less favourably than others because of race.
• Indirect discrimination:  by applying a provision, criterion or practice that disadvantages job applicants or employees of a particular racial group without objective justification.
• Harassment:   by subjecting a job applicant or employee to harassment related to race.
• Victimisation:  by victimising a job applicant or employee because they have made or intend to make a race discrimination complaint, or because they have done or intend to do other things in connection with the Act.

Direct race discrimination

Direct race discrimination will occur when there is less favourable treatment because of race.  The Act also prohibits segregation based on race.

Some issues to note:

• The treatment must actually occur, and must be less favourable, not just different.
• The comparator can be real or hypothetical.  Whilst the comparator does not have to be exactly identical to the claimant in every way, the comparator must have those characteristics which the employer has taken into account in deciding to treat the claimant in a particular way, with the exception of race.

The discriminatory reason need not be the sole, or even principal reason for the employer’s actions.  If race was a substantial cause, that will be sufficient.  It is also not relevant what the discriminator’s race is so it is no defence to claim the alleged discriminator has the same racial characteristic.

Indirect race discrimination

The concept of indirect race discrimination is concerned with acts, decisions or policies which are not intended to treat anyone less favourably, but which in practice have the effect of disadvantaging particular groups.  

The Act provides that a person (A) discriminates against another (B) if A applies to B a provision, criterion or practice (PCP) which puts or would put those having a particular protected characteristic at a particular disadvantage and that PCP is not a proportionate means of achieving a legitimate aim.  This has been extended to protect so called “deterred applicants” by including those who would be put at a disadvantage if they applied for a job.

An example of a PCP is an employer requiring an employee to work full time.  It is accepted that women as a whole bear the greater responsibility for childcare, so are more likely to need to work part time at points in their lives.  Unless the employer can objectively justify its’ need for full time workers, then such a provision is likely to be indirectly discriminatory.

In establishing whether a PCP places a group at a particular disadvantage, the starting point is to look at the impact on people within a defined pool for comparison.  The pool in a particular case may consist of a single workplace, the population within the local area of a workplace or even the whole economically active population of the United Kingdom.  

A pool will depend on the nature of the PCP being tested.  If the claimant is challenging a recruitment criterion, the pool will usually consist of those people who could be affected by it.  That is, those who would be eligible for the job but for the criterion in question. On the other hand, if the claimant is challenging a practice or policy applied throughout the employer’s organisation, then the pool will usually be the whole workforce.  

The PCP that puts members of the protected group at a particular disadvantage must also put the claimant at a disadvantage.  It is not enough merely to establish that they are a member of the protected group.  

There does not need to be a formal policy in place for an employee to challenge a management decision affecting them.  A one off decision is sufficient to amount to a “provision”.  

Objective justification

Even if a claimant establishes that a PCP puts one group at a particular disadvantage, the PCP will not be indirectly discriminatory if the employer can show that the PCP in question is a “proportionate means of achieving a legitimate aim”.  This is known as the test of “objective justification”.

The correct approach to justification is derived from European Law.  The ECJ has held that the measures taken by the employer:-

• Must correspond to a real need on the part of the employer;
• Must be appropriate with a view to achieving the objectives pursued; and
• Must be necessary to that end.

The burden is on the employer to prove justification and it is for the Tribunal to undertake a detailed analysis of the working practices involved.  

The approach generally taken by Tribunals is to split the justification issue into two questions:-

• Can the employer establish that it was pursuing a legitimate aim?
• Can the employer establish that the measures taken to achieve that aim were proportionate?

Indirect discrimination - legitimate aim

In establishing a legitimate aim there must be evidence that the employer’s actions actually contribute to the pursuit of the legitimate aim.  However, it is not necessary for the employer to have consciously considered the legitimate aim when deciding on the action in question.  

Racial harassment at work

Race harassment occurs where both:

• A engages in unwanted conduct related to race; and
• The conduct has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

The harassment need not be targeted at an individual, but can relate to a general culture which, for instance, appears to tolerate race-related comments.  It may be intentional and obvious, or subtle and insidious.

The ACAS guide gives an example of Dominique, who is French but has lived in the UK for some time.  Several members of her team make fun of her accent and make jokes about her being French.  Dominique is offended but her manager does not take it seriously and she decides to make a formal complaint.  It would equally be possible for a colleague of Dominique’s who felt the behaviour towards her impacted their working environment to make a complaint.

Racial victimisation at work

Under the Act, victimisation occurs where a person (A) subjects another person (B) to a detriment because either:

• B has done a protected act; or
• A believes that B has done, or may do, a protected act.

Protected acts are:

• Bringing proceedings under the Act;
• Giving evidence or information in connection with proceedings under the Act brought by or against anybody;
• Alleging that any person has contravened the Act;
• Otherwise doing anything under or by reference to the Act.

Making an allegation or giving information that later turns out to be false can still constitute a protected act, provided it was made in good faith.  In contrast, a discrimination claim without merit which is brought solely to harass the employer is not a protected act, as it is not considered to be brought in good faith.  

Associative and perceptive discrimination

Less favourable treatment can be “because of” race whether or not it’s the victim’s race.  For example, if an employer treats an employee less favourably because they have friends of a particular race, or the employer perceives the employee is of a particular race then that can amount to discrimination.

Our expertise

We advise on all aspects of employment law including on issues related to racial discrimination in the workplace.  We help employers to put in place the policies and procedures to support their employees and business with confidence.  We advise on how to prevent issues arising and how to handle them if they do through our employment investigations service.

We use our exceptional breadth and depth of experience to give clients personalised advice to help manage risk and resolve issues as well as bespoke training tailored to your needs together with the use of our independent HR consultants to put in place systems to monitor, review and minimise the risk of claims.  

Please contact Michael Powner or your usual Charles Russell Speechlys contact if you would like to get in touch.