Racial Discrimination (Employment and other fields)
- Under the provisions of the Race Relations Act 1976, it is unlawful for any person in Great Britain to discriminate against another person on grounds of colour, race, nationality or national or ethnic origins – whether in the field of employment or in the provision of goods, facilities or services.
- The 1976 Act, which repealed and replaced earlier Race Relations Acts, identifies three forms of racial discrimination, each of which is unlawful. These are:
- direct discrimination (which occurs when a person is treated less favourably than other persons because of his or her colour, race, nationality, etc);
- indirect discrimination (which occurs when a person is effectively denied access to employment opportunities, goods, facilities, services, etc by the imposition of an unjustifiable condition or requirement which places him or her at a disadvantage relative to persons of a different racial group); and
- discrimination in the form of victimisation or racial harassment which can also occur when a person is treated less favourably by his (or her) employer, or some other person, for having brought proceedings for an alleged infringement of his rights under the 1976 Act.
- The Commission for Racial Equality (CRE), which replaced the earlier Race Relations Board, has broad powers to undertake investigations for any purpose connected with the elimination of racial discrimination and the promotion of equality of opportunity and good relations between persons of different racial groups generally. Where the CRE uncovers evidence of racial discrimination, it may issue a non-discrimi- nation notice requiring this to cease. It may bring proceedings against persistent offenders, and has similar powers to deal with unlawful discriminatory advertisements. It undertakes advisory and educational work, and may provide advice and assistance to persons or groups where there are special reasons for doing so. A Code of Practice on Race Relations, produced by the CRE, is available from The Stationery Office
Discrimination in the employment field
- It is unlawful for an employer in Great Britain to discriminate against an applicant or candidate for employment on racial grounds:
- in the arrangements he (or she) makes for the purposes of determining who should or should not be offered that employment; or
- by refusing or deliberately omitting to offer that person that employment,
unless being of a particular racial group is a genuine occupational qualification for the job in question (see below) (ibid. sections 4(1) and 5(l)(A)). - It is unlawful for an employer to discriminate on racial grounds:
- by paying an employee less than his (or her) colleagues in the same employment or offering him less advantageous terms and conditions of employment;
- by denying an employee equal access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or
- by dismissing him or subjecting him to any other detriment (ibid. section 4(2)).
Direct discrimination
- Direct discrimination occurs when a person is treated less favourably than other persons in the same employment because of his (or her) colour, race, nationality, or national or ethnic origins. An example is an employer's refusal to interview coloured applicants for vacancies, or a trade union's refusal to extend membership rights to coloured workers or foreign nationals. It can also manifest itself after employment has begun when an employer refuses (for no good reason) to promote coloured or foreign workers, or denies them access to training and facilities. Direct discrimination can be justified only if being of a particular racial group is a genuine occupational qualification for a particular vacancy (discussed below).
- An employer who openly or covertly instructs an employment agency not to submit coloured or foreign candidates for vacancies within his (or her) organisation, not only risks being served with a non-discrimi- nation notice by the Commission for Racial Equality (with the attendant penalties if he does not mend his ways), but may also be ordered by an employment tribunal to pay compensation of such amount as the tribunal considers appropriate in the fight of a job applicant's loss of prospective earnings and injured feelings. The employment agency may likewise be served with a non-discrimination notice and, if it fails to comply with the terms of that notice, could be served with a county court injunction (or sheriff court order) restraining the agency from further unlawful acts (ibid. sections 14, 30, 56, 58 and 62). See also Questions and repliesbelow.
Indirect discrimination
- An employer indirectly discriminates against an employee (or candidate for employment) on racial grounds by applying a condition or requirement which effectively excludes that person because of his (or her) race, colour, nationality, or national or ethnic origins. Thus, it is prima facie unlawful for an employer (employment agency or trade union) to require job applicants (or candidates for membership) to complete an unnecessarily complicated aptitude test, or to possess technical or professional qualifications which could only have been acquired in Great Britain either of which requirements might well deter otherwise suitable applicants from applying for work or membership, or taking their applications further, whether or not this effect was intended by the employer at the time.
- In Hussein v Saints Complete House Furnishings [1979] IRLR 337, an employer had stipulated that job applicants should reside outside Liverpool 7 and 8 postal districts. Persons recruited from those districts in the past had tended to bring with them their unemployed friends who were given to loitering outside the front entrance to his premises. An employment tribunal found that, although the employer had not intended to discriminate against coloured persons, his refusal to recruit persons from those two inner city postal districts had effectively eliminated some 50 per cent of the black community in Liverpool.
Note In a not dissimilar case, a confectionery manufacturer in Edinburgh insisted that employees handling the company's products should be clean-shaven. A Mr Singh, a Sikh, applied for a job at the factory and was informed that he would not be accepted unless he agreed to shave off his beard. Mr Singh, whose religion forbade him to do so, refused. On a complaint of unlawful discrimination, the Employment Appeal Tribunal held that it was not unreasonable for a manufacturer of foodstuffs to insist on the highest standards of personal hygiene in order to avoid the possibility of food contamination. Mr Singh's appeal was dismissed (Singh v Rowntree Mackintosh Ltd [1979] IRLR 199).
Discrimination by way of victimisation
- An employer is guilty of racial discrimination by way of victimisation if he treats the employee victimised less favourably than he would other persons in similar circumstances, and does so because the employee in question:
- has brought proceedings against him (or some other person) under the Race Relations Act 1976; or
- has given evidence or information in connection with proceedings brought before a tribunal or court by any other person under the 1976 Act.
The same rule applies if an employee is victimised or harassed for alleging that his employer's recruitment or employment policies amount to unlawful racial discrimination under the 1976 Act unless the evidence shows that the employee's allegations were false and not made in good faith (ibid. section 2).
Dismissal on racial grounds
- The dismissal of an employee on grounds of colour, race, nationality or national or ethnic origins is unlawful and automatically unfair and will nowadays attract a prohibitive award of compensation – including compensation for loss of earnings and damages for injured feelings (plus interest).
Instructions to discriminate
- It is unlawful for an employer to instruct any person over whom he (or she) has a measure of authority (eg personnel manager, head of department, foreman, supervisor, etc) to do any act which constitutes unlawful discrimination on racial grounds; or to induce, or attempt to induce, such a person to do any act which is unlawful (sections 30 and 31, Race Relations Act 1976).
Note In Zarcynska v Levy [1978] IRLR 532, a barmaid was dismissed when she disobeyed her employer's instructions not to serve black customers. The Employment Appeal Tribunal held that the employer's instructions constituted unlawful discrimination on racial grounds and that the barmaid (who was herself white and the innocent victim of that discrimination) had been unlawfully and unfairly dismissed.
Discriminatory advertisements
- It is unlawful for an employer to publish, or cause to be published, a job advertisement which indicates a clear or ill-concealed intention to discriminate against potential applicants on racial grounds, unless the advertisement indicates that persons of any class defined otherwise than by reference to colour, race, nationality or ethnic or national origins are required for employment outside Great Britain (ibid. section 29).
Note Proceedings in such cases may be brought only by the Commission for Racial Equality. Nowadays, of course, it is extremely unlikely that any newspaper proprietor or publisher will agree to publish an advertisement which is patently discriminatory (unless it was reasonable for the publisher to rely on a statement by the person wishing to publish that advertisement that it would not be unlawful under the 1976 Act) (ibid. section 29(4)).
Genuine occupational qualification
- It is not unlawful for an employer to discriminate against job applicants on racial grounds if being of a particular racial group is a genuine occupational qualification for the vacancy, or vacancies, in question (ibid. section 5(1)). Being of a particular racial group is a genuine occupational qualification for a job if it involves working in a place where food or drink is (for payment or not) provided to and consumed by members of the public or a section of the public in a particular setting for which, in that job, a person of that racial group is required for reasons of authenticity (ibid. section 5(2)(c)).
- An employee (or candidate for employment), who believes that he or she may have been discriminated against on racial grounds (whether by his employer, or by a prospective employer), has the right under the 1976 Act to question the person concerned on the reasons for his apparently unlawful actions. If dissatisfied with that employer's answers (if answers were given), the employee or job applicant may admit them (or a refusal to answer) as evidence in proceedings before an employment tribunal (ibid. section 65). The purpose is to enable the person aggrieved to decide whether or not to bring legal proceedings against the employer concerned (the respondent).
- The procedure for submitting questions to an employer in such circumstances has been formalised by the Race Relations (Questions & Replies) Order 1977. The prescribed form is Form RR65 (available from any employment office, Job Centre or unemployment benefit office of the Department for Work & Pensioins; or from the Commission for Racial Equality).
Note Form RR65 is an eight-page document which not only provides space for preparing the questionnaire to be submitted, but also contains a deal of practical advice both to the person framing the questions and to the person to whom those questions are put. Although the document acknowledges that an employer is under no legal obligation to answer the questions put to him in Form RR65, it does caution that his failure or refusal to do so within a reasonable period could well put him in a difficult position should the questioner decide to refer the matter to an employment tribunal. - To be admissible as evidence before an employment tribunal, the complainant's questionnaire (Form RR65) must be served on the respondent employer either:
- before a complaint of unlawful racial discrimination is sent to the Regional Office of the Tribunals, but not more than three months after the date on which the alleged discrimination occurred; or
- if the complaint has already been lodged, not later than 21 days after the date on which it was received by the Secretary to the Tribunals.
- Any person who has been dismissed from his (or her) employment on racial grounds, or who considers that he has otherwise been discriminated against or subjected to any detriment (by his employer or by a prospective employer) in contravention of the Race Relations Act 1976, may present a complaint to an employment tribunal. An employee does not have to resign from his job in order to present a complaint of unlawful discrimination. Indeed, any employee victimised by his employer for complaining to an employment tribunal, or for alleging that his employer has committed an act of unlawful racial discrimination, can pursue a separate complaint on those grounds alone. An employee has the right to pursue a complaint of unlawful discrimination under the 1976 Act regardless of his (or her) age or length of service at the material time. However, he must present his complaint before the end of the period of three months beginning with the date on which the act complained of was done or, as appropriate, within three months of the effective date of termination of his contract of employment (ibid. section 68(1)).
Note To pursue a complaint of unlawful racial discrimination (including a complaint of dismissal on racial grounds), the complainant should complete Form ET1, copies of which are available from employment offices, Job Centres and unemployment benefit offices of the Employment Department. Once the complaint has been received and registered, the Secretary to the Tribunals will send a copy of Form IT1 to a conciliation officer of ACAS who will intervene to promote a settlement before the matter is put to an employment tribunal. Anything communicated to a conciliation officer (either by the complainant or by the respondent employer) is not admissible in evidence at any ensuing tribunal hearing, except with the express consent of the person concerned (ibid. section 55). - If an employment tribunal decides that a complaint of unlawful discrimination is well-founded, it will make a declaration to that effect and will order the respondent employer to pay the employee or job applicant such compensation as it considers appropriate, including compensation for lost earnings or prospective lost earnings (if any) and injury to feelings. There is no upper limit on the amount of compensation which a tribunal can award in such cases (per the Race Relations (Remedies) Act 1994, which came into force on 3 July 1994). If the complainant is still employed, the tribunal will also recommend what the employer must do to avoid any further acts of discrimination against that employee (ibid. section 56). If the complainant has been unlawfully dismissed on racial grounds, the employer will be ordered to reinstate or re-engage that employee in the same or an equivalent job. If the employer refuses to comply (or the complainant indicates that he or she does not wish to be reinstated or re-engaged), the tribunal will take that factor (and the complainant's wishes) into account when calculating the amount of compensation to be awarded.
- An employee considering bringing a complaint of unlawful racial discrimination against his (or her) employer may agree to settle 'out of court' by entering into a compromise agreement with his employer. Such an agreement is binding on both parties, so long as it is willingly entered into and is prepared in accordance with section 72(4A) of the 1976 Act
- So-called COT 3 agreements are likewise binding on both parties;
Note Under section 212A of the Trade Union & Labour Relations (Consolidation) Act 1992 (as inserted by section 7 of the Employment Rights (Dispute Resolution) Act 1998), the Advisory, Conciliation & Arbitration Service (ACAS) is empowered to arbitrate in disputes involving proceedings or claims which could be the subject of unfair dismissal proceedings.
Assistance by Commission for Racial Equality
- A person contemplating bringing legal proceedings against his employer (or a particular employer) for alleged unlawful discrimination under the Race Relations Act 1976, may apply to the Commission for Racial Equality for help in preparing his (or her) case. If the Commission is agreeable (eg, on the ground that the case raises a question of principle), it may advise the complainant, attempt to procure an 'out of court' settlement (see previous paragraphs), arrange for the giving of advice or assistance by a solicitor or counsel, arrange for representation by any person (including all such assistance as is usually given by a solicitor or counsel in the steps preliminary or incidental to any proceedings, or in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings), or give any other form of assistance which the Commission may consider appropriate (ibid. section 66(2)).
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