AA Legal Documents
Law guide

Racial discrimination

Contents

Racial discrimination

The Equality Act 2010 (EA) makes it unlawful for an employer to discriminate against you because of your race. 'Race' includes:

  • Race
  • Colour
  • Nationality
  • Ethnic or national origins

Under the Act, it doesn't matter if the discrimination is done on purpose or not. What counts is whether you're treated less favourably than someone else because of your race.

The EA protects all racial groups. A racial group means any group defined by reference to race, colour, nationality, or national or ethnic origins.

Who and what is covered?

Employees under a contract of service or apprenticeship are covered.

Contract workers will be covered against any actions of the principal (i.e. the person requiring the work to be done) amounting to racial discrimination, if:

  • They are supplied by the employer to the principal under a contract between their employer and the principal, and
  • The principal has a position of influence and control over the working environment of the contract worker.
The laws against racial discrimination at work cover every part of employment. This includes recruitment, terms and conditions of employment, pay and benefits, status, training, promotion and transfer opportunities, as well as redundancy, dismissal and non-renewal of a fixed term contract. So if you applied for a job and you feel you did not get it on the basis of your race, you could make a claim to the Employment Tribunal.

Exceptions

The law allows a job to be restricted to people of a particular racial or ethnic group where there is a genuine 'occupational requirement' for the employee to belong to that group. This means that it must be crucial to the job and not just one of several important factors. An example would be where a black actor is needed for a film or television programme.

Types of discrimination

Direct racial discrimination

This is where you are treated less favourably than another employee because of your race, when compared with another worker of a different racial group, but whom otherwise shares the same or similar (but not materially different) circumstances as you (known as a 'comparator').

The comparator's circumstances do not need to be identical to yours (in terms of the type of job, job level, job experience and seniority, etc.), but must not be wholly dissimilar. If you cannot find a suitable comparator, then a 'hypothetical comparator' can be used instead, who would be deemed to have the same employment as you (such as your title, role, level etc). An Employment Tribunal has the power to decide the particular circumstances of a hypothetical comparator (such as their personality).

Direct discrimination also extends to protecting you if your employer treats you less favourably based on:

  • Their perception of your race, regardless of whether or not the perception is correct. For example, if you are refused a promotion because your employer perceives you to belong to a particular race but your colleague is promoted, whose circumstances are similar to yours, except that your employer doesn't have the same perception about their race, you may have been subjected to direct race discrimination
  • The race of another person (also known as discrimination by association). Such instances would involve you being treated less favourably because you live with someone of another race, or because you were dismissed after refusing to comply with instructions that would require you to discriminate against someone because of their race, e.g. You have been instructed to refuse to serve any customers of Asian origin.

Your employer could be liable for a direct discrimination claim even if there was no intention to discriminate against you.

Your employer can't defend a claim of direct race discrimination by 'justifying' it (arguing that their actions were a proportionate means of achieving a legitimate aim). There is, however, an exception whereby direct discrimination is allowed in circumstances where it is required, in order to comply with another law or a genuine occupational requirement of the role. For example, a dramatic performance or other form of entertainment that requires a person from a particular racial group for authenticity.

Usually, the only available defence to a direct discrimination claim is proving that there was no discrimination.

Indirect racial discrimination

Indirect racial discrimination occurs where a formal or informal working practice, provision or criteria that your employer applies equally to all the workers, puts a group of workers who share the same race, at a particular disadvantage when compared with other workers. A worker within that disadvantaged group must actually suffer that particular disadvantage.

It does not matter whether or not this has been done intentionally. For example, if your employer introduced a dress code applying to all employees and that dress code resulted in employees of your ethnic group suffering a particular disadvantage, this might be a case of indirect racial discrimination.

Your employer can defend against indirect discrimination claims by justifying the use of the unlawful practice, provisions or criteria, if it can show that its application is a proportionate means to achieving a legitimate aim.

Harassment

Harassment is unwanted conduct towards a worker by an employer or another worker, because of that worker's actual or perceived race, or association with someone of a particular race. This applies to any conduct that violates a worker's dignity or creates an intimidating, hostile, humiliating, degrading or offensive environment, even if it was not intended as such.

If it is reasonable that the unwanted conduct has had an intimidating or humiliating effect on you, then you may have a harassment claim against your employer (even where someone didn't intend to harass you). Note that you will not be protected by the EA if you are over sensitive and unreasonably take offence to an innocent comment.

Workers who are not the subject of the unwanted conduct will also be able to make harassment claims for behaviour that they find offensive, even if they themselves do not have a protected characteristic.

Employers will be liable for any acts of harassment undertaken by their employees in the course of their employment – whether they knew about it or not – if they fail to take reasonable steps to prevent it. 'In the course of employment' means 'done to you whilst at work' or 'done to you while 'in a workplace-related environment'. Employers can't defend a claim of harassment by showing that they did not authorise it or on the grounds that the actions were reasonable or warranted.

An employer can, however, escape liability for harassment, if it took reasonably practicable steps to prevent it.

Examples of harassment would be participating in, allowing or encouraging behaviour that offends someone or creates a hostile atmosphere, such as making racist jokes at work.

Victimisation

Victimisation is where you are treated less favourably because:

  • You have asserted your rights under the EA, not to be discriminated against
  • You gave evidence or information in a complaint under the EA
  • You have done anything else under the EA
  • You have alleged that your employer or another worker has contravened the EA
  • Your employer believes that you have done or may do any of these things
For example, you might have a victimisation claim if, because you took any of the above mentioned actions, you are prevented from going on training courses; or unfair disciplinary action is taken against you; or you are excluded from company social events.

Employers who don't stop discrimination, harassment and bullying by their employees may be breaking the law.

Positive action

Positive action in training and applying for particular positions

If an employer reasonably thinks that a group of its workers who share a protected characteristic (race, age, sex, sexual orientation, marital status, gender reassignment, pregnancy and maternity, disability or religion or belief) either...

  • suffer a disadvantage connected to their protected characteristic,
  • have needs that are different from the needs of those who do not have their protected characteristic, or
  • have a disproportionately low participation in an activity, such as partaking in training activities, doing particular work or filling particular posts in an employer's workforce,
...then the employer can take any proportionate action which, either; enables or encourages the group of workers to overcome or minimise their disadvantage; meets their needs; or enables or encourages them to participate in the activity.

Employers are allowed to provide special training to members of the group. They can also encourage members of the group to apply to do particular work or fill posts (for example, by saying that applications from them will be particularly welcome).

This does not mean that employers can discriminate in favour of the members of the group when it comes to choosing people to do the work or fill the posts, unless they meet the circumstances described below under 'Positive action in recruitment and for promotions', as that could be unlawful discrimination.

Positive action is not the same as 'positive discrimination', which is where members of a particular group who have a protected characteristic are treated more favourably regardless of the circumstances.

Positive action in recruitment and for promotions

The Equality Act 2010 makes it lawful for employers to take positive action when recruiting and making internal promotions in order to overcome a disadvantage connected with a protected characteristic or where the inclusion of people with the protected characteristic in a particular activity is disproportionately low. Employers will be able take positive action where all of the following apply:

  • There are two equally qualified candidates to choose between
  • An employer does not have a policy of treating persons with the protected characteristic more favourably
  • Positively discriminating is a proportionate means of achieving a legitimate aim.
The Act does not require employers to take positive action and it is therefore voluntary.

Further guidance on positive action can be obtained from the Equality and Human Rights Commission.

Positive discrimination

Positive discrimination is unlawful except if used when recruiting or promoting individuals in the limited circumstances described above.

What to do next?

If you feel that another employee or a member of management other than your immediate boss is discriminating against you because of your race, talk to your employer and explain your concerns. Your employee representative (such as a trade union official) – if you have one – may also be able to help.

If your line manager or supervisor is discriminating against you, you should talk to their supervisor or to the company's HR department.

Many employers have an equal opportunities policy, and you should ask to see a copy of this.

You should also talk to your employer if you're told to act in a way that you think discriminates – for example, if you're told to treat someone differently because of their race, colour, nationality, ethnicity or national origins.

If your employer doesn't want to help, you may need to make a complaint using your employer's grievance procedure. For more information, see our articles on grievance procedures in England, Wales and Scotland. If your employer does not have a grievance procedure, you should set out your complaint in a letter and hand it to your line manager. If your line manager is the problem, then hand the letter to your HR manager or your line manager's supervisor. Your employer should then arrange a grievance meeting with you. If the outcome of the meeting is unsatisfactory, you have the right to appeal to a manager who was not previously involved in your grievance.

If you're still unhappy, you can apply to an Employment Tribunal. Prior to taking this step you should obtain legal advice. You must lodge your claim within three months of the act of discrimination taking place. If the discrimination extends over a period of time, you must bring your claim within 3 months from the end of that period.

You could get in touch with your local Racial Equality Council, if there is one, for advice.

Further information

The Equality and Human Rights Commission (EHRC) has wide-ranging powers and can take legal action on your behalf. They promote equality and fair treatment of employees, customers and the users of services. It is also a good source of advice if you feel you may have been discriminated against at work or elsewhere.

More information is available from the Acas website. Acas offers free, confidential and impartial advice on all employment rights issues.