Race discrimination at work
Various events have brought the issue of racism to the forefront this year. These events include the disproportionate number of people of BAME background who have died of coronavirus, increased unemployment within the BAME group as a result of the global pandemic, the killing of George Floyd and the resurgence of the Black Lives Matter movement.
The Black Lives Matter movement has highlighted the need to consider and combat race discrimination, especially within in the workplace. The movement has been a catalyst for further emphasis on preventing and challenging instances of race discrimination at work and has encouraged employers to reinforce their commitment to racial equality in the workplace.
We are currently celebrating Black History Month which, although originating in the United States, was first celebrated in the UK as early as 1987. Black History Month celebrates the contributions black people have made to the UK over many generations. Despite the enormous talent that exists, contributions black people have made and continue to make is still being ignored or going unrecognised. In the UK, Black Lives Matter demonstrations have called for an end to systemic racism, where people aren’t treated fairly because they are black.
If you are an employer, there is no better time than now, to assess your current practices and implement change to ensure BAME employees are recognised and supported.
If you are an employee now is the time to speak up if you have been subjected to discrimination at work.
Whilst it is recognised that some employers have come a long way in ensuring equality at work, there is still a need for improvement and for some employers to embrace equality, diversity and inclusion.
History of race relations in the UK
The Race Relations Act 1965 was the first piece of legislation implemented to combat racial discrimination in public places, but was criticised for failing to address vital areas where discrimination was most prevalent, namely employment and acquiring accommodation. This led to the passing of the 1968 Race Relations Act, which made unlawful, acts of discrimination within employment, housing and advertising. Then, in 1976, the third Race Relations Act tightened the law even more.
Finally the Equality Act became law in October, 2010 replacing previous discrimination legislation and ensures consistency in what employers and employees need to do to make their workplaces a fair environment and comply with the law.
What is race discrimination?
Race discrimination occurs when someone is treated differently because of their race.
This treatment could be a one-off action or as a result of a rule or policy which disadvantages an employee because of their race.
It is important to note that this treatment doesn’t have to be intentional to be unlawful.
In the Equality Act 2010, race can mean someone’s colour, nationality (including citizenship), ethnic or national origins.
Types of race discrimination
There are four main types of discrimination: direct discrimination, indirect discrimination, harassment and victimisation.
Direct discrimination occurs when person A treats another less favourably than A treats or would treat others because of their race. There is no defence for direct discrimination.
Indirect discrimination can occur when an employer applies a provision, criterion or practice (PCP) which applies to all workers, but particularly disadvantages people of a particular race.
Harassment is when unwanted conduct related to race has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
Victimisation occurs when a person has been subject to a detriment because they may have made or supported a race discrimination claim or complaint.
The Equality Act covers all employees and workers regardless of the size of the business. It also covers job applicants and former staff.
Employers should always ensure that they do not disadvantage or discriminate in their recruitment practices and how they deal with references post-employment.
Although generally discrimination claims can be difficult to win in a tribunal, recent cases have begun to widen the parameters making it easier for claimants to bring indirect discrimination cases. Employers therefore must ensure that they do not act unlawfully in contravention of Equality legislation.
What should employers/employees be doing?
As an employer you may notice an increase in the number of race discrimination complaints and other issues which may present challenges to you as an employer, i.e. how should you be dealing with discrimination complaints.
As an employee you may have been subjected to or witnessed discriminatory behaviour - it is important that you raise these concerns so that your employer is able to respond appropriately and support you.
How should an employer deal with complaints?
An employer should ensure that they listen and provide adequate support to the person who has raised the complaint and remember to keep an open mind and be empathetic. Discrimination situations are individual and what one person may consider to be discriminatory may vary from person to person.
An employer should ensure that they carry out a thorough and prompt investigation in a fair and reasonable manner. The extent of the investigation will depend on the seriousness of the allegations and any possible outcome.
It is important for employers to review current policies/practices and provide training on a regular basis.
Employers should intervene if they see or hear employees expressing or acting on racist views at work. Incidents should be investigated and handled through appropriate disciplinary measures.
Employers should be clear to their employees of language and phrases used in the workplace and whether used as a ‘joke’ and unintentionally will not be tolerated. The law considers how such words are perceived by the person irrespective of how or why someone made them.
Raising a complaint
An employee can raise a complaint in a number of ways and it is up to the employee to decide which option feels the most appropriate given the circumstances. It is important to raise concerns so that these can be dealt with quickly, which may prevent things from escalating. An employee may wish to raise concerns informally with a manager or more formally by invoking the grievance procedure. If it is the latter then an employee’s grievance should be dealt with in line with the steps set out in the grievance procedure.
Social media has presented additional challenges for employers where it has served to confuse the distinction between an employee’s personal and professional lives. Employers should ensure that they have a robust social media policy in place, which all employees are aware of. It may be the time to consider and update such policies and distribute these amongst your employees.
Failure to address an employee’s post which may have been derogatory may lead to a race discrimination claim.
As an employee it is important to be aware of social media posts may be viewed by your employer or other colleagues and you may be subject to disciplinary action if these posts are deemed discriminatory or may have caused offence to others.
How Talbots can help
If you require any advice relating to race discrimination, whether you consider you may have a claim for discrimination or you are an employer requiring advice, potential re-drafting of policies or training then please get in touch with either Reyhana Koser on or Ellie Robinson-Brady. .Alternatively, please telephone 0800 118 1500.