You may not give much thought to whether your organisation is an equal opportunities employer. Chances are, you take it for granted that you are.
However, discrimination comes in many forms, and it’s imperative that you know the law.
Numerous studies have suggested that in the UK, employees from black and minority ethnic (BAME) groups are at a particular disadvantage in regard to employment. Not only do latest government figures show that black, Pakistani and Bangladeshi people are at least twice as likely to be unemployed than white people, but the TUC’s Racism Ruins Lives study suggests that racial discrimination in the workplace remains a widespread but under-discussed issue. The poll found that 65% of all ethnic minority participants have reportedly experienced racial harassment at work in the last five years, and 49% said they had been subjected to unfair treatment based on their race.
This article explores what the law says about the different types of racial discrimination and the role of HR.
The Equality Act 2010
Employers cannot discriminate on the basis of any of the nine ‘protected characteristics’ outlined in the Equality Act 2010. Race is one of these protected characteristics and covers colour, nationality and ethnic or national origins.
The Act applies to all employers. It also covers all aspects of employment, including recruitment, terms and conditions of employment, promotion, training, pay, redundancy and dismissal.
Examples of racial discrimination in the workplace
Under the Equality Act, there are four main types of discrimination:
1. Direct discrimination
A prospective or actual employee is directly discriminated against by another person if they treat the individual less favourably than they treat others on the basis of a protected characteristic. An example of direct race discrimination would be a manager passing over somebody for promotion because of their race.
Direct discrimination also covers discrimination by association and perception.
Discrimination by association occurs when a person is treated less favourably because of their association with another person, such as a spouse, partner, sibling or child, who has a protected characteristic. For example, a job applicant has been offered a role, but this is withdrawn once the employer finds out they are married to a person of colour.
Discrimination by perception is where a person is treated less favourably because they are believed to have a protected characteristic, when in fact they don’t. For example, an employer decides to reject a job application from a white woman because they assume that she is black due to her African-sounding name.
2. Indirect discrimination
Indirect discrimination occurs when a company’s policies, procedures or rules which apply to everyone has the effect that people with a certain protected characteristic are put at a disadvantage when compared with those who do not share it.
For example, an employer introduces a new dress code to the workplace and, as part of the rules, they decide to prohibit cornrow hairstyles. This could amount to indirect race discrimination as it is more likely that these hairstyles will be worn by certain racial groups.
Under the Equality Act, harassment is defined as “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating and intimidating, hostile, degrading, humiliating or offensive environment for that individual”.
This could include mimicking someone’s accent, making jokes about their country of origin, or calling them derogatory and racist names. Employers can also be found vicariously liable for acts of harassment committed by their employees in the course of their employment.
The Equality Act 2010 states that a person victimises an individual if they treat someone badly because they have performed a ‘protected act’, or they believe that they have done so or suspect they will. A protected act includes making a claim for discrimination, including racial discrimination, or helping someone to make a claim (for example, they give evidence).
A refusal to provide a reference, or giving a poor reference, may also result in a claim for victimisation if done in retaliation for an employee having brought discrimination proceedings or given evidence against you in the past.
Remember, as long as the employee has acted in good faith, they are still protected from victimisation even if the allegations turn out to be false.
Both workers and job applicants can bring claims of unlawful discrimination in Employment Tribunals. There is no cap on the compensation that can be awarded for successful discrimination claims. The compensation that an Employment Tribunal may award may cover not only financial loss, but also personal injury and ‘injury to feelings’.
It is important to remember that anything that an employee does during the course of their employment will be deemed as having been also done by the employer, irrespective of whether the employer knew about it or approved it. To avoid this, you must be able to prove that you have taken all reasonable steps to prevent employees from committing discrimination in your workplace.
What does the law say about pay discrimination based on race?
The Equal Pay provisions of the Equality Act 2010 do NOT apply to race. They only address differences in pay due to sex/gender. As a result, if someone is paid less than a comparable colleague, and they believe the reason for that was their race, they would have to pursue a claim under the ‘normal’ discrimination provisions of the Act.
In most cases, that would be a direct discrimination claim, i.e. A (a black employee) is paid less than B (a white employee) and the reason for that different and less favourable treatment is race. Care must be taken to identify the correct comparator (B in the example above) as a court or Tribunal must compare like for like. There must be no material difference between the circumstances of A and B in the example, which can be difficult in practice. As a starting point, they must do the same job, but outside of that, differences in pay can be for a myriad of reasons – experience, level of qualification, length of service, etc. In view of this, it may well be difficult to identify an appropriate comparator.
In theory, claims for pay disparities based on race could be brought under other discrimination heads, but it is difficult to envisage a situation where that is due to indirect discrimination, i.e. where a criterion or practice that applies to everyone results in members of a certain race being disadvantaged. Potentially, some kind of pay structure based on length of service or residency requirements in the UK could amount to racial pay discrimination, but arguably that is more likely to be linked to a person’s nationality rather than their race.
6 ways to stamp out racial discrimination in your workplace
Discrimination can have a profoundly negative impact on employees’ moral, productivity and health. It can also lead to the stress and cost of defending an Employment Tribunal claim and may tarnish your reputation. As such, though issues of this nature are all too often seen as low priority, taking a proactive stance against racial discrimination is essential.
Here are our six simple steps for employers and HR professionals to follow:
We’re available now
If you’re currently facing a grievance of race discrimination, or want to proactively ensure your HR policies and practices are inclusive and non-discriminatory, our Employment Law and HR specialists can help.