Race discrimination

In this series, we delve into the XpertHR reference manual to find essential
information relating to one of our features. This month’s topic…

Recent developments

Amendments to the Race Relations Act 1976 came into effect on 19 July this
year. Intended to implement provisions of the European Council Race and Ethnic
Origin Directive (2000/43/EC), the amendments introduce changes relating to
discrimination on the grounds of race, or ethnic or national origin, but do not
apply to discrimination on the grounds of colour or nationality, to which the
pre-amendment provisions of the Act continue to apply.

There has been criticism, including in the House of Lords’ debate on the
legislation, about the resultant inconsistencies in the race legislation but
the Government has not indicated an intention to enact the primary legislation
that would be required to extend the new provisions to discrimination on
grounds of colour or nationality.

Included in the amendments are express provisions stating that acts of
discrimination (including discrimination in the form of victimisation) or
harassment on grounds of race or ethnic or national origins committed after an
employment relationship has ended will be unlawful where they arise out of, and
are closely connected to, the previous relationship.

Occupational qualifications

Employers have a defence to a race discrimination claim in relation to
recruitment, promotion, transfer or training for employment or dismissal where
being of a particular racial group is a genuine occupational requirement for
the job.

But following the latest amendments, there are separate exceptions applying
to discrimination on grounds of race or ethnic or national origins and
discrimination on grounds of colour or nationality.

As far as discrimination on grounds of race or ethnic or national origins is
concerned, employers will have a defence to a claim in relation to recruitment,
promotion, transfer or training for employment or dismissal where:

- Being of a particular race or ethnic or national origin is a genuine and
determining occupational requirement

- It is proportionate to apply that requirement in the particular case

- Either the person to whom the requirement is applied does not meet it, or
the employer is not satisfied, and in all the circumstances it is reasonable
for it not to be satisfied, that the person meets it.

The exception for discrimination in relation to recruitment, promotion,
transfer or training for employment (but not for dismissal from employment)
that used to apply to discrimination on any racial grounds now applies only to
discrimination on grounds of colour and nationality.

In relation to discrimination on grounds of colour or nationality, the Race
Relations Act 1976, section 5 sets out an exhaustive list of genuine
occupational qualifications (GOQs), namely that:

- The job involves participation in a dramatic performance in a capacity for
which a person of that racial group is required for reasons of authenticity

- The job involves participation as an artist’s model or photographic model
in the production of a work of art or visual image where a person of that
racial group is required for reasons of authenticity

- The job involves working in a place where food or drink is provided to and
consumed by members of the public or a section of the public in a particular
setting for which, in that job, a person of that racial group is required for
reasons of authenticity

- The holder of the job provides persons of that racial group with personal
services promoting their welfare and a person of that racial group can most
effectively provide those services.

The personal services GOQ is the one that has caused most case law and in
practice is the most important exception. Issues may arise as to whether any
personal service is involved in the job and whether a person of a particular
race can most effectively provide it.

Racial harassment

The new amendments also specifically prohibit harassment on the grounds of
race, or ethnic or national origin. Harassment on grounds of colour or
nationality will constitute unlawful race discrimination only if the individual
is subjected to less favourable treatment on grounds of colour or nationality
and is subjected to a detriment.

Harassment is defined by the Race Relations Act 1976, section 3A as being
where, on grounds of race or ethnic or national origins, a person engages in
unwanted conduct that has the purpose or effect of:

- Violating another person’s dignity or

- Creating an intimidating, hostile, degrading, humiliating or offensive
environment for that person.

Where there is no intention to violate the other’s dignity or create such an
environment, the behaviour is to be regarded as having the effect of doing so
only if, having regard to all the circumstances, including in particular the
perception of the other person, it should reasonably be considered as having
that effect.

Harassment on the grounds of colour or nationality (but not on grounds of
race, ethnic or national origins) will be unlawful race discrimination if the
individual is subjected to a detriment and the treatment is less favourable
treatment on grounds of colour or nationality.

The Employment Appeal Tribunal (EAT) in Thomas and another v Robinson [2003]
IRLR 7 EAT, when considering the law that now continues to apply only to
discrimination on grounds of colour or nationality confirmed the need to show
that the employee has been subjected to a detriment as well as being subjected
to less favourable treatment on racial grounds. It said that harassment
involves two elements: the targeting of the person being harassed and the
causing of distress to the target.

An employment tribunal considering whether an employee has been discriminated
against by the use of racist language should consider both whether the language
has been used and whether the employee has suffered a detriment as a result. In
many cases, it may be easy to establish detriment, but it should not be
assumed.

Undesirable as it may be, there are some work environments in which racial
abuse is given and taken in good part by members of different ethnic groups.

In such cases, the mere making of a racist remark could not be regarded as a
detriment.

Harassment may occur over a period of time through a series of relatively
minor incidents of harassment or it may occur through one blatant incident. In
either case, the complainant will have to show that his or her working
environment has been affected in such a way and to such a degree as to result
in a detriment.

Action point checklist

- Follow the same procedure for all
employees in the recruitment process when checking entitlement to work in the
UK.

- Take steps to prevent harassment by employees or third
parties.

- Ensure that any dress or appearance requirements that have a
disproportionate impact on a racial group can be justified.

- Ensure that workers who have been involved in a race
discrimination claim are treated in the same way as if they had not.

- Ensure that managers are aware of the issues that could arise
in relation to race discrimination claims.

- Ensure that harassment claims are fully investigated and take
disciplinary action where claims have been substantiated.

- Do not stipulate requirements or conditions likely to have a
disproportionate impact on one racial group in comparison to others not within
that racial group.

- Do not place employees at risk of facing discriminatory acts
by third parties.

Questions and answers

How are employees protected from racial discrimination?

The Race Relations Act 1976 protects employees from unlawful
discrimination on the grounds of their race or ethnic background. However, the
term ‘employee’ in the Act has a wider definition than that contained in other
employment legislation, and includes self-employed and contract workers.

Are employers liable for any
racial discrimination suffered by employees?

Employers are directly liable under the Race Relations Act
1976, section 4 for discriminating on racial grounds in respect of recruitment,
terms and benefits during employment or dismissal. An employer is also liable
for the discriminatory acts of its employees done in the course of their
employment, whether or not those acts are done with the employer’s knowledge or
approval. Employers may also be liable for acts of discrimination committed by
their agents.

Can an employer defend itself
against accusations of racial discrimination on the grounds that it needed to
impose particular conditions that were interpreted as discrimination?

In direct discrimination claims, an employer is not able to
defend the claim on the basis of justification, as the defence of justification
is available in relation to only indirect discrimination. Positive
discrimination is generally unlawful under the Race Relations Act 1976,
although limited forms of positive action are allowed in relation to, for
example, charities.

What are the elements that
constitute a claim of indirect race discrimination?

Indirect discrimination is where a provision, criterion or
practice is applied equally to everyone but this disadvantages or would
disadvantage people of a particular race or ethnic or national origin compared
with other people and the employer cannot show the application of the provision,
criterion or practice to be a proportionate means of achieving a legitimate
aim. Or where the employer applies a condition or requirement that it cannot
justify, and with which people of a particular colour or nationality find it
more difficult to comply than those of another colour or nationality, so
subjecting them to a detriment. The courts must decide between the employer’s
need to impose a requirement or condition, or apply a provision, criterion or
practice, and the discriminatory effect.

Are there any circumstances in
which an employer can insist on recruiting from a particular racial group?

Yes, under certain limited circumstances employers have a
defence to a discrimination claim where being of a particular racial group is a
genuine occupational requirement or qualification for the job.