Race discrimination in the workplace

Table of contents

What is race discrimination in the workplace

Race discrimination in the workplace occurs if you are treated unfairly in the workplace because of your race, or because of the race of someone else that you are associated with (such as a child or a partner). You are protected against race discrimination in the workplace under the Equality Act 2010. Under the Equality Act 2010 you must not be discriminated against because of your (or an associated person’s) protected characteristic. “Race” is a protected characteristic under s.9 of the Equality Act 2010 and includes colour, nationality, national origin, and ethnic origin. Race discrimination can take the following forms:

  • Direct discrimination
  • Indirect discrimination
  • Harassment
  • Victimization

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Examples of race discrimination

  • A British marketing company which employs predominantly British staff recruits Polish nationals and seats them in a separate room nicknamed ‘Little Poland’. The company argues that they have an unofficial policy of seating the Polish staff separately from British staff so that they can speak amongst themselves in their native language without disturbing the staff who speak English. This is segregation, as the company has a deliberate policy of separating staff because of race
  • At the end of the year, an employer decides to invite seasonal workers employed during the previous summer to claim a bonus within a 30 day time limit. By writing to these workers at their last known address, the employer is liable to disadvantage migrant workers. This is because these
    workers normally return to their home country during the winter months, and so they are unlikely to apply for the bonus within the specified period. This could amount to indirect race discrimination, unless the practice can be objectively justified
  • A manager treats a worker (who is heterosexual) less favourably because she has been seen out with a person who is black. This could be direct race discrimination against the worker because of her association with this person

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Race discrimination cases in the newspapers

  • Asian Royal Mail worker wins race discrimination employment tribunal (Minority Perspective)
  • Black female officer discriminated against by Met Police, tribunal finds (The Telegraph)
  • Shropshire college must pay out £25,000 in race case (Shropshire Star)
  • Bristol school must pay £14,000 compensation for race discrimination (Bristol Post)

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The definition of race under the Equality Act 2010

Under s.9 of the Equality Act 2010, “race” can include one or more of the following:

  • Your colour
  • Your nationality
  • Your ethnicity
  • Your national origin
  • Your ethnic origin

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Direct race discrimination

The definition of direct discrimination is contained at s.13 of the Equality Act 2010. Under s.13:

(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat otherss.13 Equality Act 2010

Normally, but not always, direct discrimination involves the intentional treatment of someone less favourably because of their race. The easiest way to approach direct discrimination is in terms of comparative treatment – have you been treated less favourably than an actual or hypothetical colleague because of your race?

As well as being treated less favourably because of a protected characteristic that you possess, you are also protected from less favourable treatment if any of the following occur:

  • You are treated less favourably than others because of the protected characteristic with whom you are associated e.g. a friend or a relative (known as “discrimination by association”)
  • You are treated less favourably because of the protected characteristic of a person who you do not know (e.g. you are discriminated against because you refuse to discriminate against a customer because of their race)
  • You are treated less favourably because your employer wrongly perceives that you have a protected characteristic (e.g. you are discriminated against because someone at work wrongly perceives that you are Jewish)

Examples of direct race discrimination

  • A British marketing company which employs predominantly British staff recruits Polish nationals and seats them in a separate room nicknamed ‘Little Poland’. The company argues that they have an unofficial policy of seating the Polish staff separately from British staff so that they can speak amongst themselves in their native language without disturbing the staff who speak English. This is segregation, as the company has a deliberate policy of separating staff because of race
  • If an employer were to state in a job advert ‘Gypsies and Travellers need not apply’, this could amount to direct discrimination because of race against a Gypsy or Traveller who might have been eligible to apply for the job but was deterred from doing so because of the statement in the advert. In this case, the discriminatory basis of the treatment is obvious from the treatment itself
  • A manager treats a worker (who is heterosexual) less favourably because she has been seen out with a person who is black. This could be direct race discrimination against the worker because of her association with this person

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Indirect race discrimination

Indirect discrimination occurs when your employer or prospective employer puts in place a rule, policy or practice which people of a certain skin colour, ethnic group, or national group are less likely to be able to meet than other people, and this places them at a disadvantage.

The definition of indirect discrimination is contained at s.19 Equality Act 2010. Under s.19:

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristics of B’s if: (a) A applies, or would apply, it to persons with whom B does not share the characteristic; (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it; (c) it puts, or would put, B at that disadvantage; and (d) A cannot show it to be a proportionate means of achieving a legitimate aims.19 Equality Act 2010

 

Examples of indirect race discrimination

  • At the end of the year, an employer decides to invite seasonal workers employed during the previous summer to claim a bonus within a 30 day time limit. By writing to these workers at their last known address, the employer is liable to disadvantage migrant workers. This is because these
    workers normally return to their home country during the winter months, and so they are unlikely to apply for the bonus within the specified period. This could amount to indirect race discrimination, unless the practice can be objectively justified
  • Solely as a cost-saving measure, an employer requires all staff to work a full day on Fridays, so that customer orders can all be processed on the same day of the week. The policy puts observant Jewish workers at a particular disadvantage in the winter months by preventing them from going home early to observe the Sabbath, and could amount to indirect discrimination unless it can be objectively justified. The single aim of reducing costs is not a legitimate one; the employer cannot just argue that to discriminate is cheaper than avoiding discrimination
  • Your employer implements a policy that no staff are allowed to take unpaid or compassionate leave as it believes some staff have been abusing their right to take such leave. This policy may put persons who have family abroad at a disadvantage as this may prevent them from going to see these family members if they are ill, and could amount to indirect discrimination unless the policy could be objectively justified.

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Harassment because of race

Harassment at work occurs under s.26 of the Equality Act 2010 if you are subjected to conduct relating to your race which is unwanted and has the purpose or effect of violating your dignity or creating an intimidating, hostile, disregarding, humiliating or offensive environment for you.

“Conduct” can include any form of act or omission e.g. a colleague making racist comments in your presence or a co-worker putting up a nude calendar in the workplace.

The harassment need not be related to your race – you may also claim harassment in the following situations:

  • Where remarks relating to your race are made but not directed at you: for example, you are black and a racist joke about black people is made in the workplace but not directed at you.
  • Where remarks not relating to race (but not your race) are made about other people: for example, you are black and a racist joke about Jewish people is made in the workplace. No Muslims are present but you find the joke offensive.
  • Where remarks are made about a person you are associated with: for example, you have adopted a Somalian child and your colleagues repeatedly make offensive remarks about you.
  • Where you are falsely perceived to be of a particular race: for example, you are wrongly perceived to be Irish and a number of offensive jokes are made about Irish people
  • Where it is known that you are not of a particular race but your colleagues make offensive remarks anyway: for example, you are black and of English national origin but your colleagues, knowing this, subject you to “banter” about you being Nigerian

Examples of race-related harassment

  • In front of her colleagues, a black electrician is told by her supervisor  that her work is below standard and that, as a black woman, she will never be
    competent to carry it out. This could amount to harassment related to race as such a statement would be self-evidently unwanted and the electrician would not have to object to it before it was deemed to be unlawful harassment
  • You are German and offensive jokes relating to German people are made in your presence, although not directed about you. This could amount to harassment related to race
  • A manager racially abuses a black worker. As a result of the racial abuse, the black worker’s white colleague is offended and could bring a claim of racial  harassment

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Victimization

Under s.27 of the Equality Act 2010, it is unlawful to victimize you because you have done a “protected act”. Basically, this means that you must not be punished because you have complained about discrimination in one way or another or if you have helped someone who has been the victim of discrimination. The detriment which you may be subjected to can and does vary: you may be bullied at work, labelled a trouble-maker, denied promotion, training or annual leave, or even dismissed from your job.

You are protected against any detriment at work only if you do one of the following things (“protected acts”):

  • Make a complaint or claim of discrimination under the Equality Act 2010
  • Give evidence or information to help someone else who has made a complaint or claim under the Equality Act
  • Do any other thing which is related to the Equality Act
  • Say that someone has done something unlawful under the Act

Examples of victimization

  • A GP instructs his receptionist not to register anyone with an Asian name. The receptionist would have a claim against the GP if she experienced a detriment as a result of not following the instruction. A potential patient would also have a claim against the GP under the services provisions of the Act if she discovered the instruction had been given and was put off from applying to register
  • A worker threatens to make a complaint for race discrimination in the Employment Tribunal and is then threatened by his employer and pressurised by his employer to drop the claim
  • You make a claim for race discrimination and succeed. Your employer then writes a poor reference for you or refuses to provide one at all.

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Action you can take if you think that you’re being discriminated against

If you think that you are being discriminated against or harassed because of your or another person’s race then you should take action as soon as possible. Below are some examples of what you can do:

  • Inform your line manager that you believe that you are being discriminated against. Make sure that you put a complaint in writing (preferably by email so that there is a time and date stamp on the complaint and you can prove that it has been sent to the relevant person) and keep a copy. If you think that it is your line manager who is discriminating against you then make a complaint so someone else in a position of authority in your organisation.
  • Make a formal complaint (known as a “grievance”) to your HR department and also keep a copy of this
  • Obtain specialist advice from a qualified person – you can either consult a lawyer directly or make an appointment with the Citizens Advice Bureau to obtain initial advice
  • Collect evidence of the incidents that you think are discriminatory. An important thing to do is to keep a diary of all of the incidents of discrimination that you think that you have suffered and to record exactly who was involved and what happened. Try and obtain any witness evidence that you can from colleagues who have seen or heard things. Keep any letters, emails, minutes of meetings etc. that you think are relevant.

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Making an Employment Tribunal claim for race discrimination

If you want to make an Employment Tribunal claim for race discrimination then you must do the following:

  • Make your claim within three months of the last date of discrimination (this is also known as the “limitation date”). The last date of discrimination can often be difficult to pinpoint so you must be extremely careful that you do not fall outside of the three-month period
  • Since May 2015 you must also apply to ACAS for a certificate of early conciliation – if you fail to do so then you will not be able to bring your claim in the Employment Tribunal (unless very limited exceptions apply)
  • Gather enough evidence to allow you to prove your case in the Tribunal – this includes both documentary evidence and, if applicable, witness evidence.

It’s important to note that (unlike, for example, unfair dismissal claims) you don’t need to have worked for your employer for any particular length of time to make a claim for race discrimination – you have the right to do this from “day one”.

You may have to pay a fee to issue your claim for discrimination unless you qualify for a fee remission. You may also have to pay a fee for the Employment Tribunal hearing – again, you may not need to do so if you qualify for a fee remission.

Details of when you may qualify for a fee remission are available in the EX160A form on the Ministry of Justice website.

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