Who Does the Equality Act 2010 Protect?

The Equality Act 2010 applies to all employees, both fixed and indefinite term, job applicants, and contract workers. It also applies to trainees, company directors and partners, those on secondment, and the self-employed.

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 could amount to indirect race discrimination unless the practice could be objectively justified.
• 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 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.
• A colleague uses the “n-word” in the workplace or makes derogatory comments related to skin colour, national origin or ethnicity

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)

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, harassment or victimisation.

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”.

Is it Easy to Prove Race Discrimination at Work?

In a race discrimination claim, the burden of proof falls on you as the claimant. This means the claimant is responsible for providing the tribunal with evidence from which they can see that discrimination occurred. The evidence must be strong enough that the tribunal believes it is more likely than not that you have suffered an act of race discrimination.

When an employee presents evidence suggesting discrimination occurred, the burden shifts to the employer to prove otherwise. They will need to explain why the employee received less favourable treatment, whether based on race or another reason.

While this process seems straightforward, it’s often difficult for tribunals, as employers will deny that the alleged discrimination involved race. Here, the tribunal must discern the intent behind the discriminatory act by analysing the specific facts and drawing appropriate inferences.

Often, employers might not even be aware that their actions could be discriminatory, as people can have unrecognised prejudice. However, when determining whether an employee was discriminated against, an employer’s motive is irrelevant.

Additionally, a discriminatory reason for your employer’s conduct doesn’t need to be the only or main reason for the discrimination. It is enough that it is a contributing cause.

Employer Liability in Race Discrimination Cases 

The Equality Act 2010 stipulates that an employer is generally liable for racial discrimination against their employees by fellow employees or even, in some cases, third parties, including clients, customers, and suppliers. When a fellow employee carries out discriminatory acts during their employment, the employer will be liable due to vicarious liability.

To defend against a racial discrimination claim, an employer must prove that they took all reasonable steps to prevent the discriminatory acts from occurring, however it is rare for this defence to succeed.

What to do if Faced with Workplace Discrimination 

Raise a Grievance

In the majority of cases, if you are unable to resolve the matter, you should file a formal grievance. Your employer should then conduct an investigation and inform you of the outcome.

Initiate Employment Tribunal Proceedings

If you are unhappy with the outcome and have appealed the decision with no avail, you may be able to file a discrimination claim in the Employment Tribunal.

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 

What is The Time Limit for Making a Race Discrimination Claim? 

Generally, as with most Employment Tribunal claims, the time limit for bringing a racial discrimination claim is three months from the discriminatory act. In situations where the discriminatory treatment takes place over an extended period, such as where it occurs due to a workplace policy, rule or practice, it may be considered a continuing act, and the three-month time limit runs from the end of the continuing act.

You should also note that in all cases, it is now mandatory to go through ACAS’s early conciliation service before you can submit a claim to the Employment Tribunal.