Race Discrimination

An employer will be in breach of its statutory duty under the Race Relations Act 1976 if it discriminates against an employee on the grounds of race. Racial grounds are defined as grounds of colour, race, nationality or ethnic or national origin. Race discrimination can take place at anytime during the employment lifecycle including: recruitment, promotions and dismissal.

Types of Discrimination

There are four types of race discrimination:

Direct Discrimination

Direct race discrimination takes place when a person treats another person less favourably on racial grounds. It is for an employment tribunal to decide what constitutes less favourable treatment by comparing the treatment of the claimant to that of another racial group. The motive / intentions of the employer are irrelevant and there is no defence once direct discrimination has been proved.

It is important to note that in order for there to be direct discrimination it is not necessary for the claimant to have received less favourable treatment. In Weathersfield Ltd v Sargent [1999] IRLR 94 the employer was found to have been guilty of direct discrimination after instructing an employee, who subsequently resigned and was found to have been constructively dismissed, to discriminate against blacks and Asians.

Direct discrimination is permitted where there is a genuine occupational requirement (GOR) such as:

  • Participation in a dramatic or other performance where the employment of a person of a particular racial group is necessary for authenticity; or
  • In a place of food and drink where the employment of a person of a particular racial group is required for authenticity ; or
  • Where the job role can be most effectively performed by a person of the same racial group as the people they are serving, for example, in a refuge.

Indirect Discrimination

Indirect discrimination takes place where all racial groups are treated equally, however, the effect of a particular practice imposed (on all employees) by the employer has an adverse effect on a particular racial group putting that racial group at a disadvantage. For example, in JH Walker Ltd v Hussain and Other [1996] IRLR 11, the employer was held to have been indirectly discriminatory when it decided that no holidays could be taken for its peak season between May and July. When the Muslim festival of Eid fell in June the company refused to make any exceptions to the policy even though its Muslim employees offered to work extra hours to compensate.

Employers have a defence to indirect discrimination if they can show that the practice is a proportionate way of achieving a legitimate aim. This requires an employment tribunal to consider whether there is a balance between the discrimination and the purpose of the practice taking into account whether there is an alternative way of achieving the same aim.

Harassment

Section 3A of the Race Relations Act 1976 defines harassment as unwanted conduct that either intends or has the effect of violating a person’s dignity or creates a degrading, humiliating of offensive environment. Employees are also protected from harassment by the Protection from Harassment Act 1997 which can force an employer to introduce steps to combat harassment. It allows employees to claim damages and / or injunctive relief in the civil courts and to prosecute in the criminal courts.

Victimisation

Victimisation provisions protect employees from being treated unfairly for brining claims of discrimination against the employer. In Chief Constable of West Yorkshire Police v Khan [2001] 1 WLR 1947 it was held that there are two stages for establishing harassment:

  • A comparison between how the claimant is being treated with another employee who has not previously brought a complaint against the employer; and
  • The less favourable treatment must be motivated by the complaint brought by the employer.

Vicarious Liability

Employers should be aware that they can be held vicariously liable for acts of racial discrimination by its employees during the course of their employment even where the acts have been done without the employer’s knowledge or approval. Employers will have a defence if they can establish that they took sufficient steps to prevent racial discrimination.

This post supplied by Ben Jones who blogs on Darlingtons employment law site which can be found at http://www.darlingtonsemploymentsolicitors.co.uk