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Employment Law Services Ltd

Racial Discrimination

The Race Relations Act 1976 outlaws discrimination on “racial grounds”. Such grounds are those that relate to a person’s

i. Colour,

ii. Race,

iii. Nationality,

iv. Ethnic origins, and

v. National origins.

The legislation covers job applicants, employees, and business partners. The legislation outlaws direct discrimination, indirect discriminationharassment, and victimisation on racial grounds.

Direct Racial Discrimination

This happens when the individual can show that they have been treated detrimentally on racial grounds than others in similar circumstances. Racist abuse or taunting are examples of direct racial discrimination. To establish that an individual has been  the victim  of direct racial discrimination it is necessary to give an example of a person from a different racial group who,  in similar circumstances, has been, or would have been, treated better (i.e. more favourably) than the particular individual was.

The legal protection extends to protect an individual if the aggressor (discriminator) treats them detrimentally because of the aggressor’s perception of the individual’s national or ethnic origins- even if their perception turns out to be factually incorrect.

An individual will also be protected if he/she is given a discriminatory instruction by his/her employer, such as an instruction to a white European employee to reject applications for a job from anyone that appears to have a black African name. The definition of “racial grounds” is therefore quite wide, taking into account the complicated realities of national identity (e.g. as between English, Scottish, and Welsh-although all come from the United Kingdom. A person’s colour may not be typical of their nationality. Similarly a person’s ethnic origins may be no indication of their nationality. However, the legislation protects individuals from detrimental treatment related to all of these matters.

Indirect Racial Discrimination

The approach to indirect discrimination depends on the specific category that the individual is pursuing the claim. Claims brought under the categories of colour or nationality are treated differently from those brought under the categories of race, ethnic or national origin.

  1. Indirect discrimination on the basis of race, ethnic or national origin occurs when a provision, criterion or practice which although applied equally to everyone and not having anything to do with race or ethnic origin, puts people of a particular race or ethnic or national origin at a disadvantage compared to other groups. The individuals will need to demonstrate that he/she falls into a race or ethnic or national origin that is put at the disadvantage, and suffers the disadvantage.

    However, if the employer can clearly show that the apparently discriminatory provision, criterion or practice is a PROPORTIONATE means of achieving a legitimate business aim then the claim of discrimination can be defeated.
  2. Indirect discrimination on the basis of colour or nationality occurs when an apparently non-discriminatory requirement or condition (which is a narrower definition than “provision, criterion or practice”) which is applied equally to everyone can only be met by a considerably smaller proportion of people from a particular racial group, which is also to the personal detriment of the particular individual (because he/she cannot meet it). As with the other form of indirect racial discrimination, an employer may have a defence if it can establish that the requirement can be justified on non-racial grounds.

Harassment

Under amendments to the Race Relations Act 1976 there is a distinctive protection against “harassment” on grounds of race or ethnic or racial origins. There is no distinctive protection against “harassment” on grounds of colour or nationality. However actual harassment under these grounds will amount to direct discrimination. Harassment is defined as conduct that has the purpose or effect of violating that other person’s dignity or creating an intimidating, degrading, humiliating or offensive environment for them. Therefore a person cannot avoid liability for harassment simply because they did not intend to harass the victim.

Victimisation

The definition of victimisation has a very specific meaning under the Race Relations Act. Victimisation is known as “retaliation” in the US, which is a closer definition of the legal term “victimisation” used in the Race Relations Act. Victimisation happens if an individual is treated detrimentally because he/she brought a claim, made an allegation of, or supported or assisted another person, in their claim of racial discrimination.

In order to address the matter of racial equality in the work place, as well as helping in defending any claim of racial discrimination in the employment tribunal employers should have an Equal Opportunities Policy (link PAYG Equal Opportunity Policy). In addition it is essential that managers have proper training in the implementation of the policy.

 

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