Race
- Summary
- Introduction to the Equality Act 2010
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- Race
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- Equality Act 2010- Sex
- Sexual Orientation
- Recruiters obligations under the Equality Act FAQs
- Remedies under the Equality Act 2010
- Gender pay gap reporting
What is meant by ‘race’ as a protected characteristic?
Race discrimination was originally prohibited under the Race Relations Act 1976 (RRA). The RRA was revoked by the Equality Act from 1 October 2010, and race is now a protected characteristic under the Act.
It is unlawful to directly or indirectly discriminate against or to harass or victimise a person on the grounds of race.
The reference to race is a reference to a group of people defined by their race, colour, nationality (including citizenship) ethnic or national origins. People who have shared characteristics from the above list can be described as belonging to a racial group.
It is possible for a person to fall into more than one racial group. Example: black and Ghanaian, white and Irish, South African and of Indian origin.
Nationality includes citizenship so a person could be an American citizen but have British Nationality.
Ethnic origins
The definition depends on a number of factors including having a long and shared history, cultural traditions and belonging to a minority group. So an ethnic group must be seen as a distinct community because of key characteristics. As a result Sikhs and gypsies have been found to be racial groups through ethnic origins whereas Rastafarians have not.
National origins can include the distinctions between the English, Scots and Welsh.
Possible future developments
The Equality Act makes provision for caste to be included in the definition of race. The term ‘caste’ denotes a hereditary, endogamous (marrying within the group) community associated with a traditional occupation and ranked accordingly on a perceived scale of ritual purity. In December 2010 the Government published a report on “Caste discrimination and harassment in Great Britain" which assessed whether the provision under the Equality Act needed to be activated but at the time of writing this provision has not been activated. Please see the link to the above report here http://www.homeoffice.gov.uk/publications/equalities/research/caste-discrimination/.
What is direct discrimination?
An employer directly discriminates against an employee if because of a protected characteristic (e.g. race), it treats the employee less favourably than it treats or would treat someone else. Treating someone less favourably means treating them badly in comparison to others.
Association and perception
Direct discrimination can arise even though the person who is complaining of discrimination does not have the protected characteristic (e.g. race). It is only necessary for the person to show that they have been treated badly in comparison to others because of a protected characteristic (e.g. race).
Example: If an employer treats an employee less favourably because it believes that the employee is of a particular nationality, this can still amount to direct discrimination, even if the employee is not in fact of that nationality. The less favourable treatment is based on the employer’s perception of the employee.
Example: If an employer treats an employee less favourably because his partner is German, this can give rise to direct discrimination as the less favourable treatment arises because of his association with another person with a protected characteristic, rather than because he himself has the protected characteristic.
Is direct race discrimination any different to the other protected characteristics?
In relation to this protected characteristic, direct discrimination also occurs if an employer segregates its employees on the grounds of race.
What is indirect discrimination?
Indirect discrimination occurs when an employer applies a provision, criterion or practice (PCP) to everyone but this results in people who have a protected characteristic (e.g. race), being placed at a disadvantage in comparison to people who do not have the protected characteristic. If the employer can objectively justify the application of the PCP this will not amount to discrimination.
What is harassment?
Harassment is defined as unwanted conduct that relates to a protected characteristic (e.g. race) which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.
Example: If an employee is subjected to offensive jokes about the fact that he is white, this would amount to harassment.
What is victimisation?
Victimisation occurs when an employer treats an employee unfavourably (badly) because the employee has either done, or the employer thinks that the employee has done, a ‘protected act’.
‘Protected acts’ include bringing a claim for unlawful discrimination or raising a grievance about discrimination or giving evidence in respect of a complaint about discrimination.
Are there any particular issues that need to be considered in connection with the recruitment stage?
Language requirements
If an employer stipulates as a criterion for a role a requirement that the person can speak fluent English, this can potentially give rise to indirect discrimination. This is because although the requirement is applied to everybody, applicants for whom English is their mother tongue are more likely to be able meet the requirement. Of course an employer can apply such a requirement if it can be objectively justified. For example the General Medical Council requires overseas qualified doctors to take a language skills test in order to practice in the U.K or an English Language school teacher should have a good command of the English language.
Qualifications
If an employer requires a person to hold particular qualifications, consideration should be given to foreign qualifications which are of similar standing. For instance an employer may require an applicant to hold GCSE maths if the role requires that level of competence in maths. Applicants who went to school in other countries would be less likely to meet this criterion and are likely to be foreign nationals. The employer should consider equivalent foreign qualifications unless it can objectively justify why only a UK qualification can be accepted.
Visa requirements
Individuals who are subject to immigration controls are not able to take up employment in the UK without having the necessary authorisation. In some cases employers may only wish to consider applicants who are free from such restrictions. Employers should be wary of stipulating as a requirement the right to work in the UK. Employers may have to consider the pros and cons which may prevent or allow them to apply for a visa for an individual to work in the UK rather than just exclude those who require a visa.
Preventing illegal working
An employer who employs someone who is subject to immigration control and does not have authorisation to work in the UK can be liable to pay a civil penalty of up to £20,000 per illegal person. Therefore employers should take steps to check the documentation of prospective employees before their employment commences. If an employer correctly carries out the appropriate checks it will have a defence against payment of a civil penalty if it transpires that the individual cannot legally work in the UK.
However employers should take care at the recruitment stage not to discriminate because of race. If for example employers elect to only check documentation of people who are not white or those who may have a different accent, this policy could give rise to indirect discrimination. Consequently it is advisable for employers to carry out these checks in the same way for all applicants to avoid discriminating.
Are there any exceptions to race discrimination?
Occupational requirements
The Act contains provisions that allow an employer to stipulate that there is a requirement that an employee must have a particular protected characteristic in order to undertake a job. These provisions are referred to as occupational requirements and they create exceptions that allow an employer to act in a way that would otherwise be discriminatory.
General occupational requirement
If an employer can show that there is an occupational requirement for an employee to be of a particular race for a job, the employer can, in respect of a person who does not meet the requirement:
- Refuse to employ;
- Refuse to promote;
- Refuse to transfer an employee;
- Dismiss an employee.
The employer must be able to show that applying the requirement is a proportionate means of achieving a legitimate aim, i.e. the employer must be able to objectively justify applying the requirement. An occupational requirement does not allow an employer to employ someone on less favourable terms or to subject a person to any other detriment. Neither does an occupational requirement provide an excuse against harassment or victimisation of someone who does not have the occupational requirement.
The Code of Practice
The statutory Code of Practice on Racial Equality in employment provides useful guidance for employers, employment agencies and businesses on how to avoid racial discrimination. Although this was written in relation to the Race Relations Act, The Equality and Human Rights Commission has produced codes of practice on Employment, Services Public Functions and Associations and Equal Pay which have been approved by the Secretary of State . The codes are statutory codes which replace existing codes and merge their content. The codes apply case law and precedents so that the provisions in the Equality Act can be effectively applied to real life cases. The codes do not impose legal obligations, however they can be taken into account by an Employment Tribunal when considering a complaint under the Equality Act.
The codes have a number of examples to show how the Equality Act might work in practice.
Where can I find further guidance on dress codes and appearance in the workplace?
Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.