Race Discrimination: A Guide for Employees

Are There Different Kinds of Race Discrimination? 

The Equality Act sets out four types of race discrimination that can occur during employment or recruitment. These are:  

• direct discrimination 

• indirect discrimination 

• harassment 

• victimisation 

Direct Discrimination 

Direct discrimination occurs when someone is treated less favourably compared to another person. When this discrimination occurs on the grounds of that person’s race, it constitutes racial discrimination and is, therefore, unlawful. Direct racial discrimination can occur because of your race, perceived race, or the race of a person you associate with.  

Indirect Discrimination 

Indirect discrimination occurs when a workplace policy disadvantages someone of a particular racial group compared to other employees. This is despite its equal application to everyone. An example could include a policy preventing employees from wearing headwear at work, potentially disadvantaging members of specific racial groups.  

Under the Equality Act 2010, indirect racial discrimination can be objectively justified. Despite this, the employer must prove that the discrimination is a proportionate means of achieving a legitimate aim.   

Harassment 

Racial harassment occurs when a person is subjected to unwanted conduct at work that violates their dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment because of their colour, nationality, or ethnic origin. Conduct would be considered to do the above only if it could reasonably be seen as having that effect.  

Racial harassment can be claimed even when not directed at the claimant personally.  This may transpire if a white colleague is offended by a racial comment towards a black colleague.  

Victimisation 

Victimisation occurs when a person is treated less favourably as a result of having made, tried to make, assumed to have made or helped another person make a complaint of discrimination.  

What Does Race Discrimination at Work Look Like?  

Direct discrimination 

Here, a colleague could make racial comments towards you but play it off as though it is simply ‘banter’. 

Discrimination by Association 

This time, you may have a partner of a different race. Such discrimination could subsequently occur when your manager discovers this and decides to treat you differently.

Discrimination by Perception 

An example of discrimination by perception could arise when you are mistaken for a specific race during a job interview. Because of their mistaken perception of you and views of that specific race, your job application is consequently rejected.  

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. 

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.  

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. 

How Can My Employer Prevent Race Discrimination at Work? 

Legally, your employer has a duty not to racially discriminate against any employee, whether directly or indirectly, or through harassment or victimisation. Additionally, an employer has a responsibility to prevent race discrimination by implementing workplace policies and disciplining any employees caught engaging in racial discrimination.  

Your employer is also responsible for regularly reviewing all workplace policies and practices to ensure they do not indirectly discriminate against people based on their colour, nationality or ethnic origins. 

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. 

Can My Employer Legally Treat Me Less Favourably Because of Race? 

Under the Equality Act 2010, all workers and job applicants have the right not to be discriminated against during their employment or recruitment process. This includes when deciding an employee’s pay and benefits, promotions or role changes, or disciplining and dismissing an employee.  

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) 

1. Middle Band: £11,700 – £35,200 

1. 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.  

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