Dilemma of the month…racist recruitment policy

I am a sales consultant employed by an employment agency for which I have worked for less than a year. An important client wants me to provide him with white-only candidates. I am under pressure to get business as I am already behind budget and unlikely to meet my targets. I have been warned that I could be dismissed if things do not improve. I told my manager that I find the client’s instructions offensive, but he told me to just get on with it, which has upset me. What are my rights and what should I do?

It is unlawful for an employment agency to discriminate against a candidate by refusing or omitting to provide its services to him (s.14 Race Relations Act 1976 (RRA)). It is also unlawful for the client or principal to discriminate against applicants or contract workers on the terms on which he allows the contract worker to do that work (s.7 RRA). Remedies under the RRA include claims for uncapped compensation including injury to feelings.

If you comply with the client’s instruction, then not only will your employer be vicariously liable for race discrimination, but you could also be personally liable, because you will be deemed to have aided your employer in doing the discriminatory act under s.33 (RRA). However, if your manager has instructed you to discriminate in accordance with the client’s wishes, then you have also been treated less favourably on racial grounds, even though you may be white and the unlawful instruction was not based on your own race or personal characteristics. You could bring a claim for race discrimination under the RRA and/or consider resigning to claim constructive dismissal, although you may be reluctant to lose your livelihood.

If you are dismissed or subjected to some other detriment because you have alleged that your employer would be acting unlawfully in placing only white candidates (or because your employer knows or suspects you are likely to do so), then you will be entitled to bring a claim of victimisation against your employer under the RRA.

However, it may be difficult to show that your allegation (or likely allegation) is the reason for your dismissal, if your employer claims you were dismissed for poor performance. You should therefore put your complaint and allegation in writing. It will also amount to a protected disclosure for the purposes of whistle-blowing legislation. If you are dismissed as a result, then you will have claims for automatic unfair dismissal (even though you have less than one year’s service) and for uncapped compensation under the whistle-blowing legislation.

Trevor Bettany, partner, Speechly Bircham

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