Race is one of nine protected characteristics covered by the Equality Act 2010 (EqA 2010). This means employees are protected from discrimination and harassment in the workplace on the basis of colour, nationality, ethnic origin and national origin.
The Equality Act 2010 protects individuals from race discrimination, both when applying for a job and when already in employment. There are two main types of discrimination:
direct discrimination: eg, treating a job applicant less favourably because of their race;
indirect discrimination: applying a provision, criterion, or practice that disadvantages applicants or employees of a particular racial group which is not objectively justified.
It’s important to remember that an individual’s perceived race and the race of someone they associate with are criteria for direct discrimination too. Individuals are also protected against harassment and victimisation as a result of their race too.
An employer’s liability
An employer can be held vicariously liable for inappropriate comments or acts of their staff, if they are considered to be in the course of employment. This was the position IT company Xactly found itself in when an employee, Mr Evans, claimed discrimination and victimisation on the grounds of disability and race, after being called a “fat ginger pikey” for his links to the traveller community (Evans v Xactly (2018)).
The Employment Appeal Tribunal concluded that the comment could be considered harassment, but in the individual circumstances of the case, Evans was not upset by the comment at the time, and it was part of the culture of the business which he had previously also taken part in. There can be a very fine line, with the facts being viewed on a case by case basis, between workplace ‘banter’ and harassment and discrimination.
What can employers do to prevent race discrimination?
Employers need to have appropriate policies in place to ensure that discrimination doesn’t occur in the first place. This starts with recruitment, ensuring a fair and open process that is free from bias. Employers should consider training staff to avoid unconscious bias in selection processes, and anonymising CVs or applications forms too.
Handbooks should include up to date equality and diversity policies, with training for all staff on the acceptable way to act and communicate with each other in the workplace. This should include examples of what is unacceptable terminology, and how to avoid racial stereotypes. If employers have a uniform or language policy, they should ensure it does not place certain groups at an unfair disadvantage.
Employers also need to ensure their grievance and disciplinary procedures are clear, and consistently applied when there are allegations of harassment or have a separate anti-harassment policy and process.
Are there any circumstances when race discrimination is lawful?
There may be certain specific requirements where discrimination may be lawful, and EqA 2010 sets out a number of occupational requirement (OR) exceptions employers can rely on to defend discrimination claims. Employers should seek expert advice before assuming they have an OR to rely on to discriminate when advertising a role, and this should be assessed on a case by case basis.
Employers may also be able to take ‘positive action’ during recruitment if they believe a certain protected characteristic is disadvantaged, has different needs or is disproportionately under-represented.
However, these exceptions do not give employers carte blanche to discriminate. Tribunals will take a dim view of an employer who tries to use either exception as a defence without clear, documented decisions based on genuine business needs.
Pam Loch is a qualified employment lawyer and managing director of Loch Associates Group