Racial Discrimination at Work

The Equality Act 2010 protects individuals from suffering racial discrimination in the workplace. By law, it is unlawful to treat someone less favourably at work, or to put someone at a disadvantage, because of a protected characteristic under the Act, including race.

In this guide for employers, we look at the meaning of racial discrimination in law and what this means in practice. We also look at an employer’s responsibilities and an employee’s rights in this context, together with how complaints of racial discrimination should be dealt with and ways in which these issues can be prevented.

 

What is racial discrimination?

Under the 2010 Act, racial discrimination is any type of discrimination against a person or group of people on the basis of their colour, nationality, as well as their ethnic or national origins. In this context, the term “race” incorporates the following 3 key elements:

• Colour: this refers to skin colour, for example, being either black or white, although colour also often overlaps with the concept of ethnic or national origins
• Nationality: this refers to the country of which someone is a citizen based on what it says in their passport, such as Irish or Polish, where this can be different from national origin
• Ethnic or national origins: this usually refers to the cultural or geographical group to which someone belongs, such as being from a Roma background or of Chinese heritage.

 
The meaning of race can therefore comprise two or more of these different elements, for example, where someone is Black African or Black British. A person may even be a citizen of one country but follow the customs of the country of their ethnic origin, for example, being black and British, but following African Caribbean culture and traditions.

 

Different types of racial discrimination at work

The Equality Act sets out the following 4 different types of racial discrimination that can occur in the workplace, either during the course of the recruitment process or employment lifecycle, affording both job applicants and workers protection against unfair treatment:

• Direct discrimination: where someone is treated less favourably than others in the workplace because of their colour, nationality, or their ethnic or national origins
• Indirect discrimination: where a provision, criterion or practice that applies equally to everyone at work puts someone from a particular racial group at a disadvantage when compared with others not from that particular group
• Harassment: where someone is subjected to unwanted conduct at work that violates their dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment, because of their colour, nationality, or their ethnic or national origins
• Victimisation: where someone is mistreated at work because they have made a complaint about racially-related harassment or any other type of racial discrimination at work.

 
Importantly, direct racial discrimination not only refers to unfavourable treatment “because of” someone’s colour, nationality, or their ethnic or national origins, but also if someone is thought to be of a particular nationality or ethnicity (perceptive discrimination). It could even be if they associate with someone of a particular nationality or ethnicity (associative discrimination), such as a spouse, partner, child, parent or friend of a certain race.

 

Examples of racial discrimination at work

When it comes to examples of racial discrimination in the workplace, much will depend on the type of discrimination. In the context of direct discrimination, this could be where an Asian student applies for a part-time job at an Irish family-run country pub, but is refused the role because the owner believes that they will struggle to “fit in” with the other staff.

In contrast, indirect racial discrimination is less obvious and often unintentional, and could include any workplace policy or practice which puts certain nationalities or ethnicities at a disadvantage. An example of indirect discrimination could include having English as a first language as a requirement of a job role, such that a Spanish graduate is turned down for a job for which they are otherwise suitably qualified. It could also be using English language skills as a redundancy selection criteria, where only Croatian workers are made redundant.

When it comes to racial harassment, this can include race-related nicknames, bullying, insults and threats, both verbal or written. It can also include inappropriate jokes, banter, gossip, intrusive questioning, ignoring someone, and excluding a person from meetings or social events. As such, an example of racial harassment could be where a French employee is regularly teased at work over their accent and eating garlic, for which those responsible are guilty of racial harassment. However, if the employee makes an informal complaint about the teasing and their line manger tells them to “laugh it off”, rather than asking those responsible to stop, the manager’s failings to take all reasonable steps to prevent this unwanted conduct from continuing would make the employer vicariously liable.

Equally, if the line manager refused the same employee a promotion because they had “caused a fuss” and complained about their co-workers, this would amount to victimisation.
Another example of victimisation could be where a British employee supports a formal grievance lodged by the French employee, and they are denied a pay rise or subject to any other detriment because of this, having too been labelled a “troublemaker”.

 

Employer’s responsibilities to prevent racial discrimination

An employer is under a statutory duty not to discriminate against anyone at work, either directly or indirectly, or through harassment or victimisation, by reason of their race. Racial discrimination does not need to be deliberate. This means an employer may discriminate against someone without realising it or meaning to, but this can still be unlawful.

The employer is also potentially responsible for the discriminatory acts of others at work. This means that if someone is subjected to racist remarks or conduct by a co-worker, and the employer fails to take all reasonable steps to prevent this, they will still be legally liable.

All employers therefore have a responsibility to prevent racial discrimination in the workplace, including putting in place clear workplace policies to help reduce and eliminate this type of unwanted conduct, as well as taking measures to discipline those responsible for racial harassment or victimisation. They also have a responsibility to review all workplace policies and practices applicable to their organisation to ensure that these do not indirectly discriminate against people on the basis of their nationality or ethnicity.

There are limited circumstances in which indirect discrimination may be objectively justified, but only if the employer can prove that a particular policy or practice is “a proportionate means of achieving a legitimate aim”. In these cases, the employer would be required to weigh up the needs of the business against the discriminatory effect on those with the race protected characteristic. As such, to objectively justify indirect racial discrimination at work, the employer would not only need to establish a good business reason for the treatment, but also show that their actions were appropriate and necessary in circumstances where there is no less discriminatory way of doing things.

An example of this could be where a manufacturer who does much of its business with suppliers in India decides to keep at least one team member who speaks Hindi when making redundancies. Even though this selection criteria might discriminate against people not of Indian heritage, because training others to learn Hindi would take far too long, the employer is likely to be able to objectively justify their decision-making in this instance.

 

Employee rights

All job applicants and workers have the right not to be discriminated against during the recruitment process and employment lifecycle. This includes when an employer is hiring for a role, determining the level of pay and benefits, providing training opportunities, deciding on promotions and transfers, or when disciplining and dismissing someone.

Under the protection afforded by the Equality Act, if an individual is unable to resolve any allegation of racial discrimination directly with the employer, they have the right to lodge a complaint before the employment tribunal. That individual will usually have 3 months, less one day, of the alleged racial discrimination taking place to lodge their tribunal claim. If successful, the tribunal can make a number of different orders, including:

• a declaration that the employer has unlawfully discriminated against the claimant
• compensation to be paid for the financial loss the claimant has suffered, such as loss of earnings, but also for damages for injury to the claimant’s feelings
• a recommendation requiring the employer to do something to remove or reduce the adverse effects which the racial discrimination claim has shown to exist on the claimant, for example, reinstating them to their job role if they were dismissed because of race.

 
The employment tribunal can also make a recommendation requiring an employer to take steps to remove or reduce the adverse effects which exist on the wider workforce. This could include introducing an equal opportunities policy; ensuring its harassment policy is effectively implemented; setting up a review panel to deal with equal opportunities and harassment procedures; re-training staff in the different aspects of racial discrimination; as well as making public the selection criteria used for transfers or staff promotion.

 

Legal risks for employers

There are various risks of falling foul of the law relating to racial discrimination, including being exposed to costly tribunal proceedings and a potentially uncapped claim for damages. This is because there is no statutory maximum on the compensation that can be awarded in these types of cases. However, any declaration of racial discrimination, or even allegations of this nature, can also seriously damage the employer brand and employee morale.

In today’s competitive labour market, being able to attract and retain top talent can be essential to running a successful business. For the employer whose reputation is one of discriminating against job applicants and workers, either racially or in other ways, this is likely to seriously affect recruitment and retention rates in both the short and long-term.

 

How to deal with complaints of race discrimination at work

When dealing with complaints of racial discrimination, these must be taken seriously, and handled promptly and professionally by the employer, where employees should be encouraged to lodge any complaint in writing. All employers should have in place a written grievance procedure so as to deal with complaints fully and fairly in accordance with the guidance in the ACAS Code of Practice. This includes:

• dealing with issues promptly, and not unreasonably delaying hearings and decisions
• carrying out a proper investigation to establish the facts of the case
• allowing employees to be accompanied at any formal grievance hearing
• giving employees the chance to put their case before any decisions are made
• acting consistently at all times with any other previous complaints
• allowing employees to appeal against any formal grievance decision made.

 
If a formal grievance is not upheld, this does not necessarily mean that the matter is likely to escalate to a tribunal hearing. However, the employer must keep clear records of the procedure followed, creating a paper trail of what has been alleged and their response to these allegations, documenting their decision-making throughout the entire process.

It is incumbent on any reputable employer to take positive steps to prevent racial discrimination at work, not only to protect their business and employer brand from damaging tribunal proceedings, but to create a fair and inclusive working environment.

There are a number of ways to help reduce or eliminate complaints of this nature, including:

• implementing a well-written policy on equality, diversity and dignity in the workplace, together with a policy to help eradicate bullying and harassment at work by reason of race and any other protected characteristic as set out under the Equality Act;
• reviewing all workplace policies and practices to ensure that these do not have an indirect discriminatory effect on certain nationalities or ethnicities, including all recruitment and management practices that may come into play during the employment lifecycle;
• providing workplace training to help educate management and staff on the meaning of racial discrimination and the ways in which this can arise at work, as well as the potential consequences for both them and the business for any breach of the 2010 Act.

 

Need assistance?

For expert guidance on how to meet your obligations to prevent racial discrimination at work, or for advice on a specific matter or complaint, contact our employment law specialists.

 

Racial discrimination FAQs

What are the 4 types of discrimination?

There are 4 main types of discrimination under UK law, including direct discrimination, indirect discrimination, harassment and victimisation. The right not to be discriminated against in any one of these 4 ways is set out under the Equality Act 2010.

What is an example of discrimination?

An example of direct discrimination could be where an employer decides not to recruit someone because they are of a different ethnicity, or where a workplace policy bans the wearing of head coverings, indirectly discriminating against certain religions.

What are 3 examples of indirect discrimination?

Examples of indirect discrimination could include any workplace policy which puts certain ethnicities at a disadvantage, such as banning any head covering, using English language skills as a redundancy selection criteria, or requiring all staff to work over Sabbath days.

How do you cope with discrimination?

Employers must try to eliminate discrimination within the workplace by reviewing their policies and practices, and taking disciplinary action against those guilty of discriminatory conduct, while employees should lodge a formal grievance with their employer about any allegations of discrimination.

 
Last updated: 13 November 2023