Racial discrimination occurs when someone is treated less favourably on grounds of their colour, race, nationality or national or ethnic origin. It also occurs where a person is disadvantaged by provision, criterion or practice of his or her employment due to  his or her race. 

It is not necessary to prove discrimination was intended: it is sufficient to show only that the outcome of the action resulted in less favourable treatment. The Race Relations Act 1976, as amended by the Race Relations (Amendment) Act 2000, covers all employers, regardless of size, and protects employees, including vocational trainees and contract workers.

What areas do I have to look out for?
All aspects of employment are covered by the Act, including recruitment, selection, promotion, transfer, training, pay and benefits, redundancy, dismissal and terms and conditions of work. Employment agencies must not discriminate on racial grounds against people seeking work.

Discrimination must not take place in job interviews or advertisements. Trade unions must not discriminate against their members or those wishing to become members. It is also an offence to pressure or instruct someone else to discriminate.

The Act applies to anyone providing goods, facilities or services to the public including hotels, bars, restaurants and pubs. It is unlawful for any such organisations to discriminate by refusing their services or giving their services on less favourable terms or conditions then offered to people of other racial groups.

Harassment
Employers should also be aware that the Act has been recently amended to provide a definition for harassment.   This is described as where a person, on the grounds of race or ethnic or national origins, engages in unwanted conduct to another which has the effect of (i) violating that other person's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her. For harassment to occur on ground (i), it must also be reasonable for the claimant to consider that such an effect or environment has been created.

What about racism from other staff - am I responsible?
Any unlawful act under the Act committed by an employee in the course of his employment is treated as having been done by his employer, whether or not it was done with the employer's knowledge or approval. Liability may extend beyond the workplace where a discriminatory act is connected with employment, for example, an act at a work's social gathering.  In this situation, a tribunal will look at the circumstances of the gathering to determine whether it was in fact in the course of the employee's employment.

The employer will have a defence only if he can prove that he took such steps as were reasonably practicable to prevent his employee from doing such an act, by for example, issuing a written policy to employees on race discrimination, giving racial awareness training or taking steps to discipline any relevant employees. If an equal opportunities policy or similar is in place, employers will need to show that it was followed in practice by the employer and that employees were trained accordingly.

What about discrimination by non-employees to staff?
As to third parties, the Court of Appeal recently held that whilst it is desirable to protect employees from racial abuse from third parties, failure to do so will not constitute discrimination unless it can be shown that this failure was based on racial grounds (e.g. a hotelier allows his customers to direct racist remarks towards waitresses who are black, but he does not allow similar racist remarks to be directed towards white employees). 

Should I be employing a certain number of black workers?
The Act does not allow positive discrimination such as selection from a particular racial group. This would be discriminatory and unlawful.
 
However, employers can take positive action to prevent or overcome discrimination. Where over the previous twelve months no-one from a particular racial group, or only very few persons from that racial group, have been doing a certain type of work then it is lawful to offer training only for people from that racial group or to encourage people from that racial group to apply.

For example, an employer with no black chefs but a high proportion of black kitchen workers, can arrange training for black workers seeking promotion, encourage black workers to apply for vacancies at that grade when advertising vacancies, or print leaflets in relevant minority languages to encourage them to apply. The law does not compel employers to take positive action, but it allows them to do so.

What's the difference between direct and indirect discrimination?
Direct racial discrimination is less favourable treatment on grounds of race. To prove direct discrimination requires a 'comparator', ie someone from a different racial group who, in  circumstances not materially different from those of the complainant, has been treated more favourably.  In certain cases, the tribunal will consider a "hypothetical comparator" where this has been raised by the employee in question, or where the comparator chosen by that employee is unsuitable. Racist abuse and harassment are forms of direct discrimination.

Indirect racial discrimination occurs when an employer imposes a requirement or condition with which people from a certain racial group are less likely to be able to comply. Such discrimination may be defensible if the criteria can be justified on grounds other than race. For example, if an employer for no good reason requires applicants to be wine connoisseurs, that requirement may be considered discriminatory against Muslims who are forbidden by their religion to drink alcohol. However, such a requirement may not be discriminatory in considering applicants for the job of a wine waiter whose duties include tasting of wine.

Are there any legitimate grounds for discrimination?
Discrimination is also not unlawful where race is a 'genuine occupational qualification' for the job. For example, if a Caribbean restaurant employs only Caribbean staff for the purposes of authenticity, this may be a general occupational qualification.  Where this applies, the employer may reasonably decide that the employee or potential employee in question does not meet the requirement.

What's the role of the Commission for Racial Equality?
The Commission for Racial Equality is a publicly funded, non governmental body established to tackle racial discrimination and harassment and promote racial equality. It provides information and advice to people who think they have suffered racial discrimination or harassment and works with businesses to promote policies and practices that will help ensure equal treatment for all. It has the power to issue codes of practice containing such practical guidance as it may see fit.  It campaigns to raise awareness of race issues and ensures all new laws take full account of the Act. It may also prosecute employers who publish discriminatory advertisements.

What happens if I am accused of discrimination?
A person may complain of discrimination relating to employment to an employment tribunal within 3 months of the date of the act complained of. The Tribunal may consider a complaint which is out of time if in all the circumstances of the case, it considers that it is just and equitable to do so. This is likely to be the case where a policy of ongoing discrimination seems evident.  Additionally, the time limit may be extended by 3 months where the statutory grievance procedure applies (which it will not in the case of harassment), and where such grievance procedures are in the process of being followed internally.

For a discrimination claim to succeed, the employee must first persuade the tribunal that he or she has a viable case to answer.  If this is achieved, it is then up to the employer to show that discrimination has not occurred.   If the employer cannot do this, the tribunal will infer that discrimination has occurred.

What are the penalties?
An employment tribunal can make:
• a declaration that discrimination has occurred
• Award compensation; compensation may only be awarded in cases of indirect discrimination where the Tribunal is satisfied the employer intended the discriminatory consequences of the imposition of the condition or requirement. This may include damages for injured feelings, and compensation for loss of opportunity in the labour marketing going beyond actual loss of wages.   There is no financial limit on the amount of compensation to be awarded.
• Recommend remedial action, namely that the Respondent take action where practicable for the purposes of obviating or reducing the adverse effect of any discrimination complained of.

The CRE may also conduct investigations into alleged discriminatory practices and impose a non-discrimination notice requiring the employer not to commit any such acts and where necessary, to implement changes in practices or arrangements.

Jonathan Exten-Wright is a partner in the Employment Department of DLA Piper Rudnick Gray Cary UK LLP.
 
jonathan.exten-wright@dlapiper.com/ www.dlapiper.com

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