Race Discrimination

Examples of Race Discrimination

• A British marketing company employing predominantly British staff recruits Polish nationals and seats them in a separate room nicknamed ‘Little Poland’. The company argues it has an unofficial policy of seating Polish staff separately so they can communicate in their native language without disturbing those speaking English. This is segregation, as the company has a deliberate policy of separating staff because of race.
• At year end, an employer decides to invite seasonal workers employed during the previous summer to claim a bonus within a 30-day time limit. By writing to these workers at their last known address, the employer is liable to disadvantage migrant workers. This is because these workers normally return to their home country during the winter months, so they’re unlikely to apply for the bonus within the specified period. This could amount to indirect race discrimination unless the practice can be objectively justified.
• A manager treats a worker (who is heterosexual) less favourably because she has been seen out with a person who is black. This could be direct race discrimination against the worker because of her association with them.

Race Discrimination Cases in the Newspapers

• Asian Royal Mail worker wins race discrimination employment tribunal (Minority Perspective)
• Black female officer discriminated against by Met Police, tribunal finds (The Telegraph)
• Shropshire College must pay out £25,000 in race case (Shropshire Star)

The Definition of Race Under the Equality Act 2010

Under s.9 of the EqA, ‘race’ includes colour, nationality and ethnic origins. These three fundamental elements are defined as the following: 

• Colour: an individual’s skin colour, for example, being either black or white, 

• Nationality: the country of which an individual is a citizen, based on what it says in their passport, such as British or German,  

• Ethnic origins: the cultural or geographical group to which an individual belongs, such as being from a Roma background or of Chinese heritage.

Direct Race Discrimination

The definition of direct discrimination is contained in s.13 of the EqA. Under s.13:

(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

Direct discrimination usually, but not always, involves the intentional treatment of someone less favourably because of their race. The easiest way to approach direct discrimination is in terms of comparative treatment. Have you been treated less favourably than an actual or hypothetical colleague because of your race?

In addition to being protected from unfavourable treatment due to a protected characteristic you possess, you’re also safeguarded against discrimination:

• By Association: This occurs when you’re treated less favourably because of the protected characteristic of someone you are associated with. This could include a friend or a relative.
• For Advocacy: This applies if you’re discriminated against for refusing to discriminate against another based on their protected characteristic. For example, you could face discrimination for refusing to treat a customer unfairly due to their race.
• By Perception: This happens when you’re treated less favourably because your employer wrongly perceives that you have a protected characteristic. For example, you might be discriminated against because someone at work mistakenly believes you’re Jewish.

Example of Direct Race Discrimination

An example of direct race discrimination could occur if an employer states in a job advertisement, “Gypsies and Travellers need not apply”. Such a statement might deter eligible Gypsies or Travellers from applying for the job simply because of the advert’s wording. In this case, the discriminatory basis of the treatment would be obvious from the treatment itself.

Indirect Race Discrimination

Indirect discrimination occurs when a rule, policy, or practice disproportionately affects people with a certain protected characteristic. In such circumstances, the policy makes it more difficult for them to comply compared to others, thereby disadvantaging them.

The definition of indirect discrimination is contained in s.19 EqA. Under s.19:

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristics of B’s if:

• (a) A applies, or would apply, it to persons with whom B does not share the characteristic;
• (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it;
• (c) it puts, or would put, B at that disadvantage; and
• (d) A cannot show it to be a proportionate means of achieving a legitimate aim.

Example of Indirect Race Discrimination

As a cost-saving measure, an employer mandates that all staff work a full day on Fridays to ensure customer orders are processed on the same day each week. This policy places observant Jewish workers at a particular disadvantage during the winter months. This is because it prevents them from leaving early to observe the Sabbath.

Such a policy could constitute indirect discrimination unless it can be objectively justified. The sole aim of reducing costs isn’t a legitimate justification; the employer cannot argue that it’s cheaper to discriminate than to accommodate religious practices.

Harassment Because of Race

Harassment at work occurs under s.26 of the EqA if you’re subjected to conduct relating to your race. Here, the conduct would be unwanted and would have the purpose or effect of violating your dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for you.

“Conduct” can include any form of act or omission, like a colleague making racist comments in your presence. However, the harassment need not be related to your race. You may also claim harassment in the following situations:

• Statements Related to Another Race: For example, if you’re black and a racist joke about Jewish people is made. Even though no Jewish people are present, you find the joke offensive.
• Talk About Someone You Are Associated With: For example, if you have adopted a Somali child and your colleagues repeatedly make offensive remarks about you.
• Dialogue Based on a False Perception of Your Race: For example, if you’re wrongly perceived to be Irish and offensive jokes about Irish people are made.
• Remarks Despite Knowing Your Actual Race: For example, if you’re black and of English national origin, but your colleagues, knowing this, still subject you to “banter” about being Nigerian.

Example of Race-Related Harassment

In front of her colleagues, a black electrician is told by her supervisor that her work is below standard. She’s also told that, as a black woman, she will never be competent to carry it out. 

This could amount to harassment related to race as such a statement would be self-evidently unwanted. Furthermore, the electrician wouldn’t have to object to it before it was deemed to be unlawful harassment.

Victimisation

Under s.27 of the EqA, it’s unlawful to victimise you because you’ve done a “protected act”. Basically, this means you mustn’t be punished because you’ve complained about discrimination in one way or another. This also applies if you’ve helped someone who’s been the victim of discrimination.

The detriment which you may be subjected to can and does vary. You may be bullied, labelled a troublemaker, denied promotion, training or annual leave, or even dismissed from your job.

Yet, you are only protected against any detriment at work if you do one of the following things (“protected acts”):

• Make a complaint or claim of discrimination under the EqA
• Give evidence or information to help someone else who has made a complaint or claim
• Do any other thing which is related to the EqA
• Say that someone has done something unlawful under the EqA

Example of victimisation

You make a claim for race discrimination and succeed. Your employer then writes a poor reference for you or refuses to provide one at all.

Can my Employer Justify Racial Discrimination?  

Indirect race discrimination may be objectively justified in some but very limited circumstances. To do so, the employer must prove that a policy or practise is a “proportionate means of achieving a legitimate aim”.

This means the employer must show that there was a good business reason for the discriminatory treatment. They must also show that the actions were appropriate and necessary and that things could have been done in no less discriminatory ways. It’s important to note that this defence is not available for direct discrimination. 

Action You Can Take if You Think That You’re Being Discriminated Against

If you think you’re experiencing race discrimination or harassment, you should take action as soon as possible. Below are some examples of what you can do:

• Inform your line manager that you believe you’re being discriminated against. Make sure that you put this in writing, preferably by email, so that there’s a time stamp of your complaint. By keeping a copy of this, you can prove it was sent and that it was delivered to the relevant person. If it’s your line manager who is discriminating against you, make a complaint to another in a position of authority.
• Make a formal complaint (known as a “grievance”) to your HR department.
• Obtain specialist advice from a qualified person. You can either consult a lawyer directly or make an appointment with the Citizens Advice Bureau to obtain initial advice
• Collect evidence of the incidents that you think are discriminatory. Keeping a diary of all of the incidents of discrimination that you think you’ve suffered can be crucial. Record exactly who was involved and what happened. Try also to obtain witness evidence from colleagues and keep letters, emails, etc., that you think are relevant.

Making an Employment Tribunal claim for race discrimination

If you want to make an Employment Tribunal claim for race discrimination, you must do the following:

• Make your claim within three months of the last date of discrimination, known as the “limitation date”. This can often be difficult to pinpoint, so you must be careful not to fall outside of the three-month period.
• Since May 2015, you must also apply to ACAS for a certificate of early conciliation. If you don’t, you won’t be able to bring your claim to the Employment Tribunal (unless very limited exceptions apply).
• Gather enough evidence to allow you to prove your case in the Tribunal. This includes both documentary evidence and, if applicable, witness evidence.

It’s important to note that (unlike, for example, unfair dismissal claims) you don’t need to have worked for your employer for any particular length of time to make a claim for race discrimination. You have the right to do this from “day one”.

What Compensation Can I Get in a Race Discrimination Claim?  

Unlike unfair dismissal claims, there is no cap on the compensation the Employment Tribunal can award for race discrimination. Compensation can include the following: 

• Loss of earnings – this can include past or future losses, outstanding holiday pay, bonuses and stock options, and notice pay; 

• Injury to feelings – compensation for the mental distress caused by the racial discrimination; 

• Personal injury – this can be due to depression or physical injury; 

• Aggravated damages – these are only awarded in the most serious cases where the behaviour of your employer has aggravated your injury;  

• Punitive damages – these are extremely rare and are only awarded where the compensation is an insufficient punishment; 

• Interest – this can be awarded from the date of discrimination until the date compensation is calculated by the tribunal. 

Personal Injury in Race Discrimination Cases: What Does the Law Say? 

You cannot bring a standalone personal injury claim to the Employment Tribunal. However, you can claim compensation for physical or psychiatric injuries that you suffer from as a result of the discrimination received by your employer.  

In most cases, personal injury in the scope of employment law relates to psychological injury rather than physical injury. To claim psychological injury, you will likely need medical evidence to prove that your injury is due to discriminatory conduct on the part of your employer rather than for personal reasons.  

Injury to Feelings Compensation 

Three bands of compensation guidelines have been set out to determine the appropriate level of compensation to award for injury to feelings. These bands are known as the Vento guidelines and most currently are set at the following: 

1. Top Band: £35,200- £58,700 (although it can exceed this in exceptional cases) 
2. Middle Band: £11,700 – £35,200 
3. Lower Band: £1,200 – £11,700 

If you have any questions or believe you’ve experienced race discrimination, get in touch with Redmans Solicitors today. As employment law specialists, we can discuss your case and advise you on how you could proceed. Begin your journey with us now: 

• Phoning 020 3397 3603
• Completing our online form to request a consultation