The main statute prohibiting Racial Discrimination in employment is the Race Relations Act (RRA) 1976, and there is also a Code of Practice written by the Commission for Racial Equality in 1984.
The Act covers both permanent and temporary jobs, whatever the size of the firm. It protects job applicants, apprentices and trainees, employees, and contract workers. Employers are liable for the discriminatory acts of their employees carried out in the course of employment, regardless of whether they knew about or approved those acts, unless they took all reasonably practicable preventative measures. It is irrelevant whether an employer acts with the best of intentions and is not personally prejudiced. What counts is what the employer does, rather than the thought processes behind the action.
The prohibition of discrimination on ‘racial grounds’ or against members of any ‘racial group’ refers to colour, race, nationality or ethnic or national origins. It covers recruitment (including terms on which employment is offered, and refusal to offer employment), promotion (including transfer, training, benefits, and facilities offered) and dismissal (including expiry and non-renewal of a fixed term contract). It also covers subjecting a worker to any other detriment, thereby putting him/her at a disadvantage.
There are three kinds of unlawful racial discrimination:
- Direct
This is where one worker is treated differently or less favourably than other workers according to his or her race. There is no defence for this (with a few exceptions, such as genuine occupational qualifications) but a worker will usually have a stronger case if they can point to an actual person of a different race who was treated more favourably in similar circumstances. However, a hypothetical comparator may also be used.
An example of this type of behaviour is refusing a person a job or promotion on the grounds that customers will not like being served by a person of that race.
- Indirect
This is where a seemingly neutral requirement or condition is imposed, but workers of a certain race are less likely to be able to meet the requirement. The only defence to this is if the requirements imposed can be objectively justified.
An example of this type of behaviour is a job that requires the employee to be clean-shaven, which would exclude Sikhs.
- Victimisation
This is when a worker is treated differently because he or she has made a complaint of racial discrimination, or been involved in another worker’s complaint. The only defence to this is if the worker made a false allegation and did not act in good faith.
An example of victimisation is if a white colleague suggests that a manager has treated a black employee unfairly and then finds him or herself being ostracised.
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