The Law on Race Discrimination

Introduction - Guide 3

1 This is the third in a series of five brief guides to discrimination in employment. They are intended as introductory handouts for trade union representatives and people in the workplace. Their aim is to set out the main provisions which protect and enhance the equal treatment of men and women at work. Since discrimination law has become increasingly complex, the particular circumstances of a case may have a significant impact on the prospects of success and these Guides are not a substitute for legal advice except in the clearest of cases.

2 Often driven by legislation from Europe, the law now regulates discrimination by age (Guide 1), disability (Guide 2), race (Guide 3) and sex (Guide 4) as well as sexual orientation and religion or belief (Guide 5). It includes maternity and parental rights, gender assignment and marital status.

3 The increasing emphasis on eliminating discrimination is underlined by the fact that in October 2007 a single equality body, the Commission for Equality and Human Rights, takes over the functions of the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission. The new Commission has wide powers to monitor the law, conduct inquiries and investigations, issue codes of practice, enforce compliance of statutory duties and will also assume new powers over age, religion and belief and sexual orientation.

4 Whilst these guides are restricted to discrimination in employment, the legislation also deals with discrimination more widely in education, planning, by public authorities and in the provision of goods, facilities, services and premises.

5 The following Acts of Parliament are the most prominent of those that make discrimination unlawful and either prohibit activities or create rights to achieve that aim.

a) Equal Pay Act 1970 (“EPA”) b) Sex Discrimination Act 1975 (“SDA”) c) Race Relations Act 1976 (“RRA”) d) Disability Discrimination Act 1995 (“DDA”) e) Employment Equality (Religion or Belief) Regulations 2003 (“RBR”) f) Employment Equality (Sexual Orientation) Regulations 2003 (“SOR”) g) Civil Partnership Act 2004 (“CPA”) h) Employment Equality (Age) Regulations 2006 (“AR”)

6 Many of these statutory requirements came into force later than the date they were enacted and others have been amended, often extensively, since their introduction. The Acts are referred to in the Guides by their initials.

7 There are some important distinctions between these Acts in the way they regulate discrimination but generally the legislation prohibits in four main ways:

a) Direct discrimination b) Indirect discrimination c) Harassment d) Victimisation

8 In addition, for instance, the DDA imposes obligations on employers to make reasonable adjustments for people with disability and the SDA and AR make it unlawful to treat anyone less favourably if they refuse an instruction to discriminate on grounds of age.

9 And whereas under the SDA and RRA there can be no justification of direct discrimination, the AR does permit the justification of direct discrimination.

10 These and other matters are dealt with more fully within each Guide.

11 As to jurisdiction, cases concerning discrimination in employment can only be brought in Employment Tribunals.

12 The remedies for unlawful discrimination are similar under all the relevant legislation. Where a complaint is upheld, and it is just and equitable to do so, an employment tribunal must make:

a) a declaration about the rights of the complainant; b) an order to pay compensation; c) a recommendation that the respondent takes action to reduce the adverse effect of its discriminatory treatment.

13 There is no cap to the damages that an employment tribunal can award in discrimination cases and may include past loss (of earnings, benefits and pension for example), future loss, injury to feelings, personal injury, aggravated damages, exemplary damages and interest.

14 With some exceptions, the statutory dispute resolution procedures apply to all discrimination cases and a failure to comply with them by either the employee or the employer may lead to an award being decreased or uplifted by anything up to 25%.

15 The Human Rights Act 1998 (“HRA”) gives domestic effect to the European Convention on Human Rights (“ECHR”) and makes it unlawful for public authorities to act in a way that is incompatible with a convention right. Therefore courts and employment tribunals must, so far as possible, interpret all legislation compatibly with such convention rights. It may be possible in certain circumstances to bring an action against a public authority directly for acting incompatibly with the ECHR. Article 14 ECHR prohibits discrimination but its protection is limited since it only applies to discrimination connected with other ECHR rights. These include the prevention of inhuman and degrading treatment (Art 3); respect for private and family life (Art 8), freedom of thought, conscience and religion (Art 9) and freedom of expression (Art 10).

The Law

This Guide is only concerned with race discrimination in employment.

Legislation

Race Relations Act 1976 (RRA) and The Race Relations Act 1976 (Amendment) Regulations 2003

In force 1977 and July 2003

Aim

Race equality legislation has been in force for over 30 years. It was introduced to protect against discrimination associated with membership of a racial group. The coverage extends beyond the workplace and includes education, planning authorities, advertising or when providing housing, goods, services or facilities. It is unlawful to discriminate in the employment field on the grounds of someone’s colour, race, nationality or ethnic or national origins. Further protection under ifferent legislation makes it unlawful to discriminate on grounds of religion or belief (see Guide 5).

However, the way in which the protection works for nationality and colour differs in some respects from the protection given to national origins, race and ethnicity.

Code of Practice

The Commission for Racial Equality (“CRE”) is legally obliged to publish its Statutory Code of Practice on Racial Equality in Employment which has been in effect since April 2006. It provides practical guidance on how to prevent

unlawful racial discrimination and aims to achieve equality of opportunity in employment. Although the code does not impose any legal obligations, its provisions may be taken in account by a tribunal or court.

Who is protected?

Except where race is a genuine occupational qualification, the RRA makes it unlawful to discriminate against anyone on grounds of race.

This applies whether they are job applicants, employees, contract workers, self-employed, apprentices, trainees or certain office holders.

When are they protected?

The law regulates discrimination by employers, partnerships, trade unions, employment agencies, qualifying bodies and providers of vocational training.

Protection begins during the recruitment process and covers all aspects of employment. The employment relationship must be covered by a contract (although not necessarily in writing).

Ex-employees may have protection where the employer retaliates following a complaint of discrimination.

What is protected?

For job applicants, protection against race discrimination includes: arrangements for determining who is offered employment; the terms on which employment is offered; refusing or deliberately omitting to offer someone employment.

For employees, protection against race discrimination includes: the terms of employment which they are afforded; access to opportunities for transfer, training or promotion or any other benefits, facilities or services; refusing or deliberately omitting to afford access to the those opportunities; dismissal (including the expiry of fixed term contracts); subjecting them to any other detriment.

Knowingly aiding someone else to commit an unlawful act is unlawful. It is also unlawful to instruct or pressure someone else to discriminate, to engage in discriminatory practices or to publish discriminatory advertisements but proceedings can only be brought by the CRE.

However, there is an individual right of redress for someone who has suffered as a result of such an instruction or who is discriminated against for refusing to carry out a racially discriminatory instruction

What is not protected?

There are certain exceptions for genuine occupational requirements and qualifications and a special provision for seaman recruited abroad.

There are also a few general exceptions including access to facilities or services to meet the special needs of a particular racial group in relation to education, training or welfare or specific training for particular work or at a particular workplace, or the selection of competitors in sports and competitions.

What is discrimination?

The meaning of racial discrimination is defined by ‘racial grounds’ which are: colour, race, nationality or ethnic or national origins and ‘racial group’ which is a group of people defined by reference to colour, race, nationality or ethnic or national origins. References to someone’s racial group refers to any racial group into which they fall and the fact that a racial group consists of two or more distinct racial groups does not prevent it from constituting a particular racial group for the purposes of the legislation.

The definition of race discrimination is broadly similar to the protection given, for example, to sex and disability but there are differences. The RRA defines race discrimination as being on grounds of protected characteristics and, in the context of race discrimination law, has been given a wide interpretation. The expression ‘on grounds of’ includes any race based reason or action and incorporates the complainant’s perceived race, the real or perceived race of someone else or the complainant’s association with someone of a particular race.

Since they overlap, defining the concepts of colour, race, ethnicity and nationality and national origins is difficult and has led to important case law. This is significant because discrimination on grounds of nationality and colour are protected differently. The legislation also includes citizenship under nationality.

There are four main categories of discrimination.

Direct race discrimination is less favourable treatment of someone on racial grounds (colour, race, nationality or ethnic or national origins) and the concept of direct discrimination has a wide meaning.

Less favourable treatment is also widely defined but must be treatment that is different to that afforded to someone from a different relevant group in the same or comparable circumstances.

Determining race discrimination therefore involves a comparison of how the complainant was treated against the treatment of another worker in similar circumstances.

For a claim to succeed, the complainant must establish the less favourable treatment and the tribunal must satisfy itself that the reason for that treatment was on racial grounds and not some other reason.

The test for less favourable treatment is objective; the question is whether the employee would have been treated differently, and more favourably, had it not been for their race.

In race discrimination cases, direct discrimination cannot be justified.

Although, segregation on racial grounds is defined in the statute as less favourable treatment and is therefore automatically direct race discrimination, only where it results from a deliberate policy is a claim likely to succeed.

Indirect race discrimination

There are two definitions of indirect discrimination depending on the ground of discrimination.

(1) On grounds of race or ethnic or national origin

This occurs when a provision, criterion or practice which, on the face of it, does not deal with racial, ethnic or national origin and is applied equally to everyone:

(a) puts or would put people of a certain race or ethnic or national origin at a particular disadvantage when compared with others and

(b) puts a person of that race or ethnic or national origin at that disadvantage and

(c) cannot be shown to be a “proportionate means of achieving a legitimate aim”.

As with sex discrimination, the original definition of 'indirect discrimination' has been significantly modified as set out above but in the case of race discrimination, this definition is additional to that found in the unamended version of the Act. The original version, requiring proof of a ‘condition or requirement and detriment’, still applies for the purposes of discrimination on the grounds of colour or nationality. It is an anomaly arising from the European Council Race Directive which excludes ‘nationality’ and does not cover ‘colour’ explicitly

Indirect race discrimination

(2) On grounds of colour or nationality

This occurs when an apparently non-discriminatory requirement or condition which applies equally to everyone:

(a) can only be met by a considerably smaller proportion of people from a particular race or group, and

(b) cannot be justified on non-racial grounds, and

(c) puts a person from that group at a disadvantage because he or she cannot meet it

Under this provision, no compensation may be awarded where the employer proves that there was no intention to discriminate.

Typically, the relevant questions for indirect discrimination (1) are likely to be:

Is the complainant part of a protected group?

Did the employer apply a provision, criterion or practice affecting the complainant?

Did the provision, criterion or practice apply to others who are not in the complainant’s protected group?

Are the relevant circumstances comparable and is the complainant put to a particular disadvantage?

Did the complainant suffer a particular disadvantage?

Was the provision, criterion or practice a proportionate means of achieving a legitimate aim?

The relevant questions for indirect discrimination (2) are likely to be:

Is the complainant part of a protected group?

Did the employer apply a requirement or condition affecting the complainant?

Did the requirement or condition apply to others who are not in the complainant’s racial group?

Are the relevant circumstances comparable and is there a disparate impact on the complainant?

Could the complainant comply with the requirement or condition?

Did the complainant’s non-compliance create a detriment?

Can the employer show that the requirement or condition was justifiable irrespective of the prohibited grounds?

Victimisation occurs when an employee is treated less favourably than others because in good faith asserts rights (or does a ‘protected act’) under the RRA.

This will include people making complaints or allegations about discrimination, bringing discrimination proceedings or acting as witnesses in such proceedings.

Establishing less favourable treatment requires a comparison between the complainant and a real or hypothetical person in the same circumstances who has not done the protected act.

Harassment occurs when an employee is subjected to unwanted conduct on the grounds of race, or ethnic or national origins which has the purpose or the effect of:

violating that other person’s dignity;

creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

There is no requirement for a comparator to prove harassment and the relevant conduct can relate to characteristics of people associated with the complainant or the complainant’s perceived characteristics.

In race discrimination cases, harassment on grounds of colour and nationality is unlawful and actionable as direct discrimination (and a comparator will be required).

Burden of proof

A change to the burden of proof was introduced into race discrimination to implement a European Directive. This means that once a complainant establishes facts from which the Tribunal can conclude there has been discrimination, and without an adequate explanation from the employer, an employment tribunal will have to make a finding of discrimination unless the employer proves that s/he did not commit that act of discrimination.

This is called the reversal of the burden of proof since the burden of proof in sex discrimination cases shifts to the employer.

In the context of race discrimination however, there is an exception. This reversal only applies to discrimination on the grounds of race, ethnic or national origin. It does not apply to discrimination on grounds of colour and nationality.

Where it does apply, the Tribunal must make its primary findings of fact and determine whether there is direct evidence of race discrimination or what inferences could be drawn from the facts. This can include any inferences that it is just and equitable to draw from evasive or equivocal answers to a race discrimination questionnaire. If facts are proved from which inferences could be drawn that the complainant was treated less favourably on grounds of race, the onus then passes to the Respondent to show that the discriminatory treatment was in no sense whatsoever on the grounds of race. This means that race was not any part of the reasons for the treatment concerned.

Positive Action

Where a particular racial group has been under-represented in particular work at a particular workplace, an employer is allowed to discriminate in favour of that group but the provisions are limited to training for employees and encouraging employee members of the group or job applicants from that group to take advantage of available opportunities.

The CRE recommends that employers draw up an equal opportunities policy and action plan to remove unlawful discrimination and reduce disparities between racial groups.

The legislation also encourages preferential training in particular areas of the country where there is under-representation of particular racial groups; affording access to training facilities and services (including languages) and training by trade unions, employers’ organisations and professional bodies to encourage the take up of posts.

Positive discrimination in recruitment is not currently permitted, although the Equalities Bill, should it get through parliament, will make it lawful.

Every effort is made to ensure the accuracy of the information contained in these pages; they are regularly reviewed and updated. The material is intended to be for information purposes only and does not constitute legal or professional advice and must not be relied upon as such. 05.08.09 (DH)