To protect against discrimination on grounds of race, Equality Act 2010 ('The Act') exists.
The definition of race
Race includes colour, nationality, and ethnic or national origins. An ethnic group must have a long shared history and its own cultural tradition. There may also be other relevant characteristics that assist in establishing an ethnic group, such as: shared language, geographical descent or religion. Sikhs and Jews have established that they are an ethnic group, whereas Rastafarians and Muslims have not. Rastafarians and Muslims would however be protected by the provisions on religious discrimination.
The protection provided by 'The Act'
Who is protected?
In the employment sphere, 'The Act' applies to recruitment, employment and vocational training. It is unlawful to discriminate against someone because of race, from the initial job application process through to dismissal.
Under 'The Act', 'employment' is widely defined to include workers, those working under apprenticeships, Crown employees and members of the House of Commons and House of Lords.
If you are supplied by your employer to work for another employer (contract workers), or are an office holder (company directors and members of some independent public bodies) you will also be protected.
'The Act' extends still further to the police, barristers, partnerships, providers of vocational training, employment agencies and trade organisations, among others.
There is no opt-out clause for small employers.
What is prohibited?
'The Act' outlaws direct and indirect discrimination, victimisation and harassment. The prohibited behaviour does not have to be directly committed by the employer. In fact, employers may be responsible for the acts of their agents, as well as the acts of their employees and in some circumstances the acts of third parties (see harassment below).
'The Act' also extends in limited circumstances to discrimination after the working relationship has ended. For instance, if a former employer provides a discriminatory reference, or refuses to provide a reference at all, because of a person's race, this could amount to unlawful discrimination. This is a type of claim that can also be brought in an Employment Tribunal and we can assist you with it. There are strict time limits to adhere to.
There are 4 main types of discrimination that can occur. The Act defines them as:
It is unlawful to treat a person less favourably because of race. In order to succeed in a claim of direct discrimination, you must show:
- That you have been treated less favourably because of race,
- That you were subject to disadvantage or detriment as a result of that treatment.
'The Act' requires that 'like must be compared with like', so the less favourable treatment must be compared with that of someone of a different race, known as a comparator. Your comparator must be a person who in all other respects is in a similar or 'not materially different' position to you. The comparator can be a real person or hypothetical.
There is no need to show motive or intention behind the discriminatory treatment as it is accepted that discriminatory treatment can be unconscious. Further, it does not matter if the discriminator shares the race of the individual being discriminated against.
The less favourable treatment does not necessarily have to be because of your race. For example, someone who is treated less favourably because of his wife's or parents' race would be protected.
'The Act' also protects those who are treated less favourably because of their perceived race. One example of this is where someone who is non-white is treated less favourably because he is perceived not to be British.
'The Act' provides that a person also discriminates if an arrangement or feature relating to the employment (technically known as a provision, criterion or practice (PCP)) is applied or would be applied equally to all employees, but:
- Puts people of a particular race at a particular disadvantage when compared with people of another race,
- Puts the complainant at that disadvantage,
- Is not a proportionate means of reaching a legitimate aim (in other words the PCP is not objectively justified).
The PCP must have been applied universally to all. For example, a requirement that all couriers must wear motorcycle helmets could disadvantage Sikh men wearing turbans who may be unable to wear helmets. This requirement would be unlawful, unless it could be justified by the employer.
The law protects people who seek to enforce their rights under 'The Act'. It is unlawful to treat a person unfavourably because they have been involved in a complaint of discrimination under 'The Act'.
Discrimination by way of victimisation occurs when you are treated unfavourably because you have done, you are about to do, or you are suspected of doing a 'protected act'.
A protected act includes:
- Bringing proceedings against the discriminator or any other person under 'The Act'
- Giving evidence or information in connection with proceedings against the discriminator or any other person under 'The Act'
- Doing anything in relation to the discriminator or any other person under or by reference to 'The Act'
- Making allegations that the discriminator or any other person has committed an act which contravenes 'The Act'
So for example, if you have made a complaint about race discrimination and are later treated unfavourably for doing so, you should be covered by 'The Act'. A protected act must be done in good faith.
Harassment related to race is a form of discrimination.
It is defined as being:
- Unwanted conduct related to race that has the purpose or effect of violating a person's dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment.
An essential characteristic of the behaviour is that it is unwanted. In considering the effect of the conduct, the Tribunal will consider the individual's own subjective experience together with whether it was reasonable for the conduct to have had that particular effect.
Employees who experience harassment related to race at the hands of a third party in the course of employment can claim against the employer if it can be shown that (i) the employer knew that the employee had been subjected to harassment on 2 or more occasions and (ii) the employer failed to take reasonable action to prevent a further act of harassment by the same or another third party. Third parties can include customers or contractors.
A claim can also be brought if harassment occurs because of an association with someone of a particular race, or if someone is perceived to be of a particular race.
Burden of proof
It has long been recognised as difficult for those bringing discrimination claims to find evidence to support their case. To combat this, 'The Act' provides that if the Claimant can establish clear facts which could enable the Tribunal to conclude that discrimination has occurred, it is then for the Respondent to provide evidence for the reason why the Claimant was treated in that way. In the absence of an adequate non-race based explanation from the Respondent, the Tribunal must draw an inference of discrimination.
Where an employer has failed to comply with relevant statutory Codes of Practice, the Tribunal may also draw inferences from this failure. For example, an employer may have failed to follow the Codes of Practice in relation to the way in which they have investigated the employee's grievance or recruited an individual to a post.
Questionnaire Time limits and the correct legislation
Most claims will need to be brought in the Employment Tribunal within 3 months less one day of the treatment you are complaining about. Where that treatment amounts to a continuing course of conduct by your employer, the claim may be brought within three months less one day from the end of the conduct.