By Sarah Gregory, co-chair of the Employment Lawyers Association working
party on discrimination
Q What changes have resulted from the amended Race Relations Act (RRA)?
A The amended RRA, which came into force on 19 July, introduced a new
definition of indirect discrimination. Under the new definition, indirect
discrimination occurs when a "provision, criterion or practice" of
the employer is applicable to all staff, but puts a person of one racial or
ethnic group at a particular disadvantage when compared with other employees
from different racial or ethnic groups.
An employer has a defence if he can show that the provision is a
proportionate means of achieving a legitimate aim. The new wording is wider
than that contained in the existing RRA (which will continue to apply to
discrimination on grounds of colour or nationality) and might include employer
preferences.
Q So will it be much easier for employees to found a claim?
A In some ways, yes. In the existing RRA, an employee must show they
have suffered a "detriment" because they cannot comply with the
requirement or condition. However, the new wording of "disadvantage"
may be a wider (and simpler) concept, and the worker no longer has to establish
that they cannot comply with the requirement.
The new definition also means it may no longer be essential for staff to use
statistics to establish indirect discrimination.
Q How can an employer prove a particular practice is justified?
A If the provision can be shown to be a proportionate means of
achieving a legitimate aim.
The new wording doesn’t exactly replicate that of the EU directive (from
which the amendments derive), which contains the familiar test of objective
justification (a legitimate aim where the means of achieving it are appropriate
and necessary).
An example is a recruiter of telesales staff, who states that preference
will be given to articulate English speakers. Clearly, this can amount to
indirect racial discrimination. The employer must prove justification,
irrespective of the race of the person to whom it is applied.
Under the new rules, the employer arguably need not demonstrate that the
legitimate means to achieving the aim are necessary.
On the face of it, this is an easier test to satisfy, but it remains to be
seen whether the new requirement of proportionality is regarded as such by
tribunals, or whether, in practice, they will take account of the directive’s
wording, and require the provision to be appropriate and necessary.
Q Will the new definition of harassment make any difference?
A Possibly not. For the first time, the legislation defines racial
harassment – although UK courts have recognised harassment as a form of
discrimination for many years. The new definition of harassment is wide enough
to cover conduct which the employee believes to have caused harassment (a
subjective test), provided that his belief is reasonable in all the
circumstances (an objective test).
An employer can therefore be liable for "unintentional"
harassment. That said, the balancing act between an employee’s belief and what
is a reasonable belief in all the circumstances, is not unlike the one a
tribunal currently performs.
Q Will it be easier for a worker to succeed?
A Under established UK case law, once an employee has described a
situation which could be discriminatory, the burden passes to the employer to
provide an adequate explanation. However, the tribunal is not currently obliged
to infer discrimination in the absence of an adequate explanation from the
employer.
This may well change. The new wording imposes an obligation on the tribunal
to infer discrimination, where the employee has established facts which point
to discrimination and where the employer fails to provide an adequate
explanation.
Q Are there any other important differences?
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A Yes; the amended RRA provides that post-employment discrimination
is covered (although the House of Lords has just ruled that all three
discrimination statutes can be interpreted to cover post-termination acts).
Employers will have to ensure that post-termination matters (for example,
appeal hearings after employment has ended, or references supplied at any time
after termination) are dealt with scrupulously fairly and in a
non-discriminatory way.
