The Legal Lowdowns
By Philip Landau
Race discrimination cases are rarely straightforward. It is rare for employers to openly treat people differently because of their race.
It is the task of an employment tribunal to decide whether the real reason for different treatment is in fact, race.
What is race discrimination?
Racial discrimination can arise in any of four ways: direct discrimination, race discrimination by way of harassment, indirect discrimination and victimisation.
Such discrimination can apply at interview stage, the terms upon which you are being offered employment (or indeed whether you are offered employment at all), in promotion and transfer opportunities, or being dismissed or subjected to any other detriment.
A person discriminates against another by treating that other less favourably than another person. Where such discrimination is on racial grounds it is unlawful. This apparently straightforward position often creates difficulty for tribunals. Employers will almost always deny that the alleged discrimination had anything to do with race.
In this situation the tribunal has to find the true and effective reason for the employer's action. The motive of an employer is irrelevant.
Direct discrimination also covers racial harassment. Under the Race Relations Act 1976, being subjected to racial harassment is being "subject to any other detriment".
Until 2003 harassment was not expressly outlawed by the Race Relations Act. A worker who had been racially harassed would have brought a claim for direct discrimination.
The new regulations, which were passed on 19 July 2003, outlaw harassment on grounds of race, ethnic or national origins. Harassment occurs when, 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.
The definition of harassment is wide enough to include most types of harassment including abusive language, excessive monitoring of work, excessive criticism of someone's work etc.
However, the concept of "reasonableness" may in some cases make it difficult to win such cases. Under the other provisions of the Race Relations Act the test of whether someone had suffered a violation of their dignity is subjective.
Indirect discrimination is where an employer operates a policy which on the face of it has nothing to do with race but in practice the effect is to disadvantage ethnic minorities.
A person discriminates against another when he applies a provision, or practice which he applies or would apply equally to everyone but which: puts or would put persons from one racial group at a particular disadvantage when compared to other persons which puts that other at that disadvantage, and which he cannot show to be a proportionate means of achieving a legitimate aim.
Another requirement for indirect discrimination is that the discriminatory action cannot be justified irrespective of the racial origins of the complainant. The onus is on the employer to prove that the condition is justified.
For example, where it is stated that an applicant for a manual job should be able to read and write English where there is virtually no reading or writing required is unlikely to be justifiable.
Anyone involved in bringing proceedings, making allegations or giving information in connection with the Race Relations Act is protected by the Act against victimisation. That means that they must not be subject to any detriment as a result.
Who is liable under the Act?
Liability for race discrimination usually lies with the employer and/or any other employee who is found to have discriminated.
Employers will be liable for the discriminatory acts of employees where those employees are acting in the course of their employment. This is known as vicarious liability.
Where the acts complained of are done by another employee, it is usually wise to bring the employment tribunal application against both the employee as well as the employer.
Employers have a defence to a complaint of discrimination based on vicarious liability if they can prove that they took all reasonably practicable steps to prevent the discrimination. It is rare for employers to be able to succeed with this defence, but if they do, the claim can continue against the individual employee.
Who is covered by the Act?
The Race Relations Act protects both applicants for jobs and employees. It may also protect contract workers and self employed workers.
All employees and workers are covered irrespective of their length of service or the number of hours they work each week.
The Act also makes it unlawful to instruct or pressurise a person to act in a way prohibited by the Race Relations Act. So protection extends to a person who has been disadvantaged because they have refused to carry out instructions which they believe will discriminate against someone else on the grounds of their race.
Exceptions under the Act
The Race Relations Act applies only to establishments in Great Britain.
Genuine Occupational Qualification (GOQ) or Genuine Occupational Requirements (GOR)
The Race Relations Act provides for specific situations in which race discrimination in the employment field is allowed, for example in relation to actors, models, personal welfare services and jobs involving work where food or drink is provided for which a person of a racial group is required for authenticity (eg. An Indian restaurant).
It is for the person making the claim to establish that discrimination has occurred. The employee has to prove discrimination by the employer 'on the balance of probabilities'.
This means that, although a tribunal might have doubts as to whether the employer discriminated, as long as the tribunal more than half believes that they have it must decide in favour of the employee.
Once an employee has established facts from which it may be presumed that discrimination has occurred, then it is up to the employer to prove that no such discrimination has in fact occurred.
It is unusual to find direct evidence of racial discrimination. Few employers are prepared to admit discrimination and those who are aware of the law may have taken steps to appear to be acting lawfully.
Whether or not discrimination can be proved will often depend on what inferences a tribunal can draw from the primary facts.
Where, for example, an employee complains of failure to promote on racial grounds the evidence may point to the possibility of racial discrimination. In those circumstances the tribunal may look to the employer for an explanation that proves there was no discrimination.
If no such explanation is put forward or if the tribunal finds the supposed explanation inadequate or unsatisfactory it is open to the tribunal to infer that the discrimination was on racial grounds.
Raising a grievance
From October 2004, unless there are special circumstances (e.g. threats or continuing harassment by the employer) the employee must write to the employer raising a grievance and attend one or two meetings before bringing a discrimination claim to an employment tribunal.
This is even where the complaint relates to disciplinary action short of dismissal or another grievance. You will not be able to issue your claim in the tribunal without first raising a grievance.Race Relations Act questionnaire
The difficulties of proof have been recognised in the Race Relations Act and provision is made in the Act for a questionnaire to be used by the applicant. A form may be served on the employer asking certain standard questions, such as how many people of a certain racial origin are employed and in respect of pay and promotional matters.
The replies are admissible in evidence and a refusal to reply without reasonable excuse, or evasive replies, permit the tribunal to draw adverse conclusions. An equivocal reply might also lead a tribunal to infer that there has been racial discrimination.
An employment tribunal can award one or more of three remedies if it finds that an individual has been a victim of race discrimination; a declaration which is an order declaring what the rights of the parties are
compensation; a recommendation that the employer should take certain steps to remove or reduce the discrimination.
Unlike in unfair dismissal, there is no ceiling on the amount of compensation a tribunal can award for race discrimination. Compensation normally includes an award for injury to feelings and an award to take into account any loss suffered, for example loss of wages or pension. The awards for injury to feelings can vary, however many thousands of pounds is not uncommon. Compensation may be reduced if the employee did not follow the statutory grievance procedure.
The Race Relations Act imposes strict time limits throughout the procedure for bringing a case for race discrimination. Good cases can be lost before they start through hesitation or delay.
If someone suspects they have been or are being racially discriminated against they must take advice immediately, contact their union as soon as possible and raise a grievance under the new statutory procedure.
The time limit for making a claim for racial discrimination to the employment tribunal is three months from the act of discrimination. This time limit can be extended by three months to allow the statutory grievance procedure to take place.
A discriminatory act may extend over a period of time so that it may be a continuing act if it takes the form of some policy, rule or practice in accordance with which decisions are taken by the employer. In these circumstances the three month period runs from the end of the continuing act.
Tribunals do have discretion to allow late claims to proceed, but there must be a good reason why a claim was not made in time.
Philip Landau is a solicitor and partner, specialising in employment law, in the London legal firm Landau Zeffertt Weir.
With thanks to Jobsite.co.uk
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