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Race Discrimination

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How is ‘race’ defined under the Equality Act 2010

For the purposes of the Act, ‘race’ included colour, nationality and ethnic or national origins.

When does race discrimination occur

Race discrimination occurs if your employer treats you less favourably because of your race. This can be your perceived race or the race of someone with whom you associate.

Race discrimination as in the other ‘protected characteristics can occur in any of four ways:

direct discrimination

indirect discrimination

harassment

victimisation

The discrimination can occur even at job interview, if you are not offered employment or the terms on which you were offered the job. During the employment you may not be offered promotion because of your race or dismissed or subjected to any other detriment.

Direct discrimination

You could have been discriminated against because of your race if you were treated less favourably than person not of your race. It is also possible to be racially discriminated against if your employer perceives incorrectly you are of a particular race or that you have an association with someone of that race.

Indirect discrimination

Indirect discrimination can occur if your employer has a ‘rule’ or policy that applies to everyone regardless of their race.

The discrimination occurs if that rule puts;

or would put you, because you are of a particular racial group, at a disadvantage when compared to other not of your racial group, and

cannot be shown to be a proportionate means of achieving a legitimate aim.

An example of indirect discrimination is that no male members of staff can have a beard, which puts members of certain religious sects at a disadvantage.

However, the rule might be able to be “objectively justified”, as a “proportionate means of achieving a legitimate aim”. Such a rule might be seen for ‘firemen’ and justified because there may be a need to use breathing apparatus. A beard might prevent a seal occurring correctly around the mask so justified on Health & Safety grounds.

Harassment

The definition of harassment in the Equality Act 2010 is if on the grounds of race or ethnic or national origins, the harasser engages in unwanted conduct which has the purpose or effect of (a) violating the victim’s dignity or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim. Conduct shall be regarded as having the effect of violating someone’s dignity or creating an intimidating environment only if in all the circumstances, including the victim’s perception, it could reasonably be seen as having that effect (It can be irrelevant what the intentions of the harasser are – its the effect it has on the victim that matters.) So the harasser saying they are sorry or only joking is not enough to justify their actions.

The harassment can include abusive language, excessive monitoring of work, excessive criticism of someone’s work etc. However, the concept of the victim’s ‘reasonableness’ may in some cases make it difficult to win such cases.

Additionally, the Equality Act has deemed that the employer is potentially liable for the racial harassment of their staff by third parties, i.e. people they don’t employ, such as clients, customers, patients or suppliers. Therefore, if your employer knew or ought to have known that you have been harassed in the course of your employment on at least 2 previous occasions by a third party (not necessarily the same third party or the same form of harassment on each occasion) and has failed to take reasonable steps to prevent it happening again, he may be liable under the Equality Act.

Victimisation

This is where you are treated less favourably as a result of you having made, tried to make, helped someone else to make or assumed to have made, a complaint or grievance of race discrimination under the Act.