Employment Law for Businesses : Racial Discrimination in the Workplace

Everyone should be able to go into work and be treated fairly and with dignity. Throughout our lives, we are all going to have fall outs at work with colleagues, with our employers or from the reverse side, with our employees. That’s life as they say. Most squabbles in the workplace get sorted out amicably. Some may not and end up with a parting of the ways. Some may even end up at an Employment Tribunal. It happens.

What should never happen is for anyone to go to work and suffer racial discrimination. To this end, the Equality Act 2010 makes it unlawful for an employer to treat employees or prospective employees differently because of their race. For the purposes of the Act, the race is to be interpreted as including:

· Colour
· Nationality
· Ethnic or national origins

To be racially discriminated against is to be harassed and treated unfairly due to your race. The Equality Act describes ‘race’ as being a ‘protected characteristic’
The Act applies to all employees, both full time and part-time, those on indefinite contracts, the self-employed, agency workers and job applicants. No qualifying period of service is required for a valid claim for race discrimination to be made (unlike unfair dismissal). Discrimination is a ‘day one right.’

What is discriminatory behaviour?

The law sets out four types of behaviour as being discriminatory:

1. Direct racial discrimination – this happens when a person is treated less favourably than a fellow employee, by an employer, on the basis of race. For example, if someone is passed over for a promotion at work on the basis of their colour, this would be direct discrimination. Racial discrimination also occurs if a person is treated less favourably not because of their own race but because their partner is from a different ethnic group.

2. Indirect racial discrimination – This occurs when a company implements policies or procedures which put could put employees of a certain ethnic origin at a disadvantage. Examples of this might be where company policy requires all males to be clean-shaven (which could be discriminatory for example against practising Sikh males) or prohibits a certain hairstyle (such as Afro-textured hair).

3. Harassment -This is unwanted conduct which violates a person’s dignity or creates an intimidating, hostile, humiliating or offensive environment for the victim. The harassment doesn’t need to have been directed at the claimant personally. Employers can be held vicariously liable for acts of harassment by their employees. Vicarious liability imposes strict liability on employers for the actions of their employees, as long as that wrongdoing is committed during the course of their employment. It is worth noting that although employers have a potential defence to racial discrimination on the grounds of vicarious liability if they can prove that they took ‘all reasonable steps to prevent the discrimination complained of, in practice, it’s usually hard for them to succeed with such a defence.

4. Victimisation – This occurs when an employee is treated less favourably because they have made, tried to make, or have let it be known that they intend to make, a complaint or grievance of race discrimination at work.

How is racial discrimination in the workplace proved?

Your initial question on reading the descriptions of the four types of discriminatory behaviour may well be, how is discrimination proved. For example, in the case of direct discrimination, no employer is likely to admit they behaved in a discriminatory manner.

The onus is on the employee making the claim of racial discrimination to prove, on the balance of probabilities, that discrimination has occurred. If an employment tribunal hears a claim for racial discrimination and after listening to the evidence of both parties, is just about persuaded that race discrimination has taken place, then that is sufficient for the tribunal to find in favour of the employee.

If liability is established in favour of the claimant employee, then the onus switches to the employer to establish sufficient facts to prove that discrimination has not occurred.

Is racial discrimination in the workplace really still taking place on a regular basis?

Racism is still a huge problem in the UK’s workplaces according to a Racism at Work survey carried out by Manchester University on behalf of the TUC. Over 5000 people were surveyed for the purposes of preparing the report.

The results were both startling and disturbing:

· Over 70% of ethnic minority workers surveyed, said that they had experienced racial harassment at work in the past five years.

· Approximately 60% reported that they had suffered unfair treatment by their employer because of their race.

· Near to 50% indicated that racism had had a detrimental impact on their ability to do their work and

· Approximately 50% said that they’d been the butt of racist jokes and abuse at work

· A third said they’d been bullied or subjected to insensitive questioning

· Racial discrimination had caused almost 15% of women and 8% of men to leave their employment

· Racism was the cause of periods of leave of sickness being taken by 28% of those who said they’d been subject to racism at work.

· The survey revealed that it was more likely to be part-time or non-permanent employees who reported that they had been subjected to incidents of racial discrimination.

Can an employee who wins a race discrimination claim against their employer, get compensation?

When an employer loses a race discrimination claim at a tribunal, they can be ordered to pay compensation with no upper limit on the amount that can be awarded.

The thought of being accused of racial discrimination towards an employee should be enough to appal all right-minded employers alone, let alone the prospect of being taken to an employment tribunal and being ordered to pay an uncapped amount of compensation. Whilst the majority of employers will plead absence of any racist bones in their bodies, without proper employment procedures, policies and staff/management training programmes in place, business owners may still find themselves on the wrong end of a complaint for racial discrimination.

Should businesses employ the services of a specialist employment law solicitor?

A more advisable approach to take would be for businesses to enlist the services of a solicitor’s firm that specialises in employment law for businesses, such as Spencers Solicitors.
Preferably, this should do be done before any problems arise, not afterwards.

As a backstop, specialist employment solicitors can be engaged should a discrimination claim be made. However, prevention rather than cure is always preferable!

Your employment law solicitors’ aim will be to:

· Protect your business by minimising the risk of a racial discrimination claim
· Develop or revise clear and robust policies in your Employee Handbook. It’s vital that the Handbook includes an equality policy that makes it clear that decisions about all aspects of your business are never based on someone’s race.
· Ensure that you have a dignity at work policy. This needs to emphasise that others must be treated with respect and that the workplace must be free from unwanted conduct such as bullying and harassment.
· Produce a company policy document stipulating that allegations of racism will not be tolerated and that disciplinary action will be taken against any employee who fails to adhere to the policy.

· Help you to develop an atmosphere within the workplace where employees are encouraged to come forward if they should be the victim of or are a witness to, racially discriminatory behaviour.

· Ensure that employees are left in no doubts that they must always be mindful of their behaviour and actions so that they do not cause any form of racial offence.

· Provide training specifically to those in managerial positions so that they are aware of how discrimination arises, of their own need to be mindful so as not to become involved in racist behaviour and how to spot the early signs of racism in the staff that they supervise. In addition, they need to be aware of how the internal grievance and disciplinary procedures operate.

Finally, it is the employer’s responsibility to ensure that any grievances about race discrimination by any member of their business are dealt with promptly. Allegations must be fully investigated and dealt with robustly in accordance with internal disciplinary procedures.

Employment Law regulations on racial discrimination are aimed at providing a legal remedy for the victims of racial discrimination in the workplace, once an act of discrimination has taken place. However, working towards the aim of adopting a zero-tolerance to racial discrimination within the workplace, as a worthy cause to aim for in its’ own right, should not be beyond the remit of any business in the 21st century.