Q&A Making the right moves

XpertHR explains your obligations with regards to the Race Relations Act.

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

A 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.

Q When may a claim of direct race discrimination be made?

A Under the Race Relations Act 1976, direct discrimination occurs when one person treats another less favourably than they treat or would treat other persons on racial grounds. The two key elements are the less favourable treatment and that the difference in treatment is on racial grounds, meaning on grounds of colour, race, nationality, ethnic origins or national origins. Both elements have to be satisfied for a claim to succeed.

Q Could an employee subjected to derogatory comments on the basis that they are Welsh have a potential claim under the Race Relations Act 1976?

A Yes. The Race Relations Act 1976 protects employees against discrimination and harassment on racial grounds. To bring a claim of race discrimination, the employee must compare their treatment with that of someone who belongs to a different racial group. For the purposes of the Act, ‘racial group’ means a group of persons defined by reference to colour, race, nationality or ethnic or national origins and ‘racial grounds’ means on any of the grounds of colour, race, nationality or ethnic or national origins.

In Northern Joint Police Board v Power [1997] IRLR 610 EAT and BBC Scotland v Souster [2001] IRLR 150 CS, the Scottish and the English were held to be separate racial groups by reference to their ‘national origins’ (but not to their ethnic origins), even though they both hold UK citizenship and both their national origins are also British. By extension, the Welsh would be a separate racial group to the English and the Scottish, as would the Irish.

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

A 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.

Q Does a generic induction day suffice for all new recruits?

A Because it is important to ensure that no employee is placed at a disadvantage on account of sex, race, disability, age, religion or belief, sexual orientation or being married or a civil partner, employers should be willing to vary the way in which induction is carried out to accommodate any special needs of a particular employee.

Q Is it lawful for an employer to make special provisions for a new employee of a particular nationality or colour when dealing with a mixed induction group?

A The Race Relations Act 1976, section 38(1) stipulates that it is lawful to offer training specifically to employees of a particular nationality or colour if the purpose of the training is to help them to be fit for their work. For this reason, an employer that offers special training is not discriminating against other employees because such action is specifically authorised by the Act.

Q When taking steps to guard against illegal working, does an employer risk being accused of race discrimination?

A Yes, great care needs to be taken not to treat candidates of foreign nationality unfavourably in the recruitment process. In May 2001, the ‘Code of Practice for all employers on the avoidance of race discrimination in recruitment practice while seeking to prevent illegal working’ was introduced to help employers to comply with the provisions of the Asylum and Immigration Act 1996 without engaging in practices that could amount to unlawful race discrimination.

Although the code is not legally binding, failure to observe it may be taken into account by an employment tribunal in its assessment of a complaint of race discrimination.

Q Could an employer that refused to employ call centre staff with regional accents leave itself open to a claim of discrimination?

A It is unlikely, except in specific circumstances. The Race Relations Act 1976 protects job applicants against discrimination on grounds of colour, race, nationality, ethnic origins and national origins. To bring a claim of race discrimination, the claimant must compare their treatment with that of someone who belongs to a different racial group. Since people from different regions within Britain are not of different racial groups as defined in the Race Relations Act 1976, no such claim could be brought. It has, however, been ruled that, under the heading of ‘national origins’, the Scottish and the English are separate racial groups. By extension, the Welsh and Irish would also be separate racial groups. It follows that a refusal to employ someone in a call centre because their accent was, for example, a Scottish accent would breach the Race Relations Act 1976 and would thus leave the employer open to a claim of race discrimination.

XpertHR is the UK’s biggest and most comprehensive source of HR information made available as a single online subscription service

Comments are closed.