Race discrimination in the Workplace
You would be hard pressed to find someone who does not know that it is against the law to discriminate against employees on grounds of their race in the workplace. However, when it comes to understanding what race discrimination actually is, and how it can manifest itself in practice misunderstandings can sometimes arise.
Most employers would be devastated to be accused of committing unlawful race discrimination but if you are going to ensure that your workplace is free from race discrimination then it is important that you are able to understand it in all of its various forms.
A quick recap of the law
In the UK, employees are legally protected from race discrimination by the Equality Act 2010. Under the Equality Act, ‘race’ includes colour, or nationality (including citizenship). It can also mean an individual’s ethnic or national origins, which may not be the same as their current nationality. For example, an individual might have Chinese national origins and be living in Britain with a British passport.
A racial group can be made up of two or more distinct racial groups, for example black Britons, British Asians, British Sikhs, British Jews, Romany Gypsies and Irish Travellers.
An individual may be discriminated against because of one or more aspects of their race, for example people born in Britain to Jamaican parents could be discriminated against because they are British citizens, or because of their Jamaican national origins.
Discrimination on the grounds of race can take four different forms: direct discrimination; indirect discrimination; victimisation and harassment and in order to be classed as discriminatory, treatment could be a one-off action or, as a result of a rule or policy based on race. It does not have to be an intention act of discrimination in order to be classed as unlawful.
Direct discrimination on grounds of race occurs when an individual is treated less favourably because of their race. Direct discrimination is the most overt type of race discrimination and is often the easiest form of discrimination to identify (and therefore avoid).
An example of direct race discrimination would be if an employer refused to give a suitably qualified individual a particular job purely because of their race.
Indirect race discrimination occurs when an organisation has a particular policy or way of working which puts people of a certain racial group at a disadvantage. Indirect race discrimination is often not intentional and is the form of discrimination where most employers will fall foul of the Equality Act 2010. In order to successfully defend against the implementation of a potentially discriminatory policy, an employer will need to be able to show that the policy was a proportionate means of achieving a legitimate aim.
An example of indirect discrimination in practice would be if an employer implemented a uniform policy that required hair be uncovered. Even though such a policy might be applied to all employees, it could have the effect of putting certain racial groups, including Muslim women or Sikh men who do cover their hair, at a certain disadvantage.
Harassment occurs when an individual is made to feel humiliated, offended or degraded because of the protected characteristic of race. It does not matter who the agitator was or, what their intention was. What is relevant is an individual’s response to the agitator’s comments or treatment. Harassment can never be justified but if an employer can show that it did everyone possible to prevent people from behaving like that, then employer may be able to raise a successful defence. A victim to harassment in this situation would not be able to bring a claim against the employer but they could still bring a claim against the individual agitator.
Without doubt, harassment most commonly arises when employees are engaging in ‘banter’. Banter is notorious for giving rise to complaints of discrimination and almost always, the offending party’s view is that they were only making a joke.
An example of harassment on grounds of race would be if a British Asian man at work kept being called a racist name by his colleagues as ‘banter’. Although his colleagues try and justify the name calling as ‘banter’, the employee is insulted and offended by it, therefore allowing him to treat himself as having been unlawfully harassed.
This is where an individual is treated badly because they have made a complaint of race related discrimination under the Equality Act 2010. It can also occur if someone is treated badly because they have supporting someone who has made a complaint of race related discrimination
An example of victimisation on grounds of race is where the Asian man referred to above wants to make a formal complaint about his colleagues. The man is then threatened with dismissal.
Preventing Race Discrimination in the Workplace
Creating a fair and inclusive workplace can take time but employers should nevertheless continually strive to remove any practices which can give rise to unfair discrimination and racial bias. Without doubt one of the best ways to start addressing race discrimination in the workplace and in some cases, even educating employees as to what can actually constitute discrimination is to introduce a Diversity and Inclusion policy.
Having a policy in place, which is communicated and actively used will not only help employers to establish a defence against race discrimination claims and distance themselves from liability for acts committed by an individual employed by them in cases of harassment, but it will also help to improve culture by showing that it is taking it legal and moral duties to being an inclusive employer seriously.
Other steps which employers may want to consider taking include;
- Removing generalised language around race from the workplace. Using the term ‘ethnic minority’ as opposed to ‘BAME’ can help certain individuals feel more included.
- Critically appraise your organisational culture. Culture contributes to everything, including talent-acquisition.
- Actively encourage employees to voice their views on any perceived workplace inequalities and to present possible solution
- Address unconscious bias, especially in management and recruitment teams
- Make standard of behaviour clear to everyone through regular and appropriate communication methods and promote a culture of personal responsibility for treating people with dignity and respect
Author: Charlotte Geesin, Legal Director at Howarths