Race Discrimination

Everyone has the right to be treated fairly at work and to be free of race discrimination. This is regardless of whether you are a full- or part-time employee, in a temporary job, or if you are a freelance or agency worker, even if you’re unemployed (and are discriminated against when applying for a job).

According to a recent report, there are higher rates of unemployment and lower pay amongst almost every ethnic minority group compared to their White peers.

In the Equality Act 2010 ‘race’ can mean your colour, your nationality (including your citizenship). It can mean your ethnic or national origins, which may be different. In this article, when we say ‘race’ we are referring to all of these things. For example, an Asian person may have Indian national origins from their mother’s country of birth, identify as Black like their father, be living in Britain with a British passport (giving British nationality) and consider themselves to have Sikh ethnicity.

Race discrimination is when you are treated differently or badly because of one of these reasons. The treatment could be a one-off incident or as a result of a rule or policy based on race. It doesn’t have to be intentional to be unlawful. Some race discrimination examples are set out below, taken from our experience as employment solicitors in Solihull.

Direct discrimination

You can complain if you have been treated less favourably than a colleague of a different race who is in the same situation as you. This is called direct discrimination. An example would be putting only native British people on the phones on the assumption that callers prefer to hear a native accent.

The legal term for your colleague in the same situation is a comparator. It is often unclear if they are in the same situation as you. If you can’t point to a colleague of a different race you may be able to show you were treated less favourably than you would have been treated if you had been someone of different race. This is called a hypothetical comparator. Some claims fail because there is no appropriate comparator.

It is unlawful to treat someone less favourably because they associate with people of a particular race, e.g. because they have Asian friends. Also, if you are perceived to be of an ethnic minority race and being treated unfairly because of it e.g. your job application is rejected because an employer thinks you have a black-sounding name.

Indirect discrimination

This is when an employer applies a one size fits all policy to everyone, but it has a bigger impact on particular racial groups, when there is no good reason for it. An example would be insisting on a certain level of English, when this is not required for the job. Those who were not native-born are adversely affected by this requirement. The employer has a defence if the policy is a necessary step to take; in legal terms, a proportionate means of achieving a legitimate aim. This means that the rule must not be any more discriminatory than absolutely necessary to achieve what the employer sets out to do (which must itself be to do with efficiency or health and safety or the particular training requirements of the job).

Harassment

Harassment occurs when someone makes you feel humiliated, offended or degraded. If you are being called a racist name at work by your colleagues, who claim it’s just banter, making you feel insulted this would be an example of harassment. If the employer can show that they trained their staff in recognising and avoiding discrimination and follows up complaints properly then it will have a defence and you will be left with a complaint against the individual who treated you like this, who may not have the means to pay any employment tribunal compensation.

Victimisation

Victimisation is treating an employee badly because they filed a grievance or employment tribunal claim against the employer for discrimination. This is called doing a ‘protected act’. Sometimes, an employee is ignored, punished or even moved out of a team away from the person complained about “for their own protection”, perhaps to a position with lower responsibility because they filed the complaint.   An act like this is victimisation, which attracts higher award than ordinary race discrimination.  This is why we almost always advise employees to file grievances in discrimination cases – any negative treatment afterwards can be painted as victimisation.

Proving it

Proving race discrimination is not straightforward. You have to prove that it is more likely than not that your employer discriminated against you because of your race, colour, nationality or origins.

It is rare to find evidence of discrimination. Few employers will commit evidence to paper or email. But if you can show that there’s something fishy about the treatment that may be related to your race etc, the employer has to disprove it – your case gets the benefit of the doubt. In legal terms you have to show “facts from which a Tribunal could conclude that there had been discrimination”, at which point the burden shifts to the employer. This could include that there is no equality policy or training happening at the company and your diary of events.

What are my time limits?

You must bring a claim within three months (less one day) of what you are complaining about, though this can be extended if there is a good reason, such as not knowing about the law or you were pursuing a grievance to try to resolve it.

Where discrimination happens over a period of time, this could be a “continuing act” allowing you to complain about all of the conduct as long as the last event was in the last three months.

What is a claim worth?

Employment tribunal compensation for race discrimination is based on

  • An injury to feelings award (it depends on the circumstances, but is typically £6,000 for a long course of low to mid-range bad treatment, or £10,000 if you are dismissed or are forced to resign).  It is worked out according to the well-known case referred to by the name of Vento.
  • You would also be entitled to compensation for loss of earnings if you are forced from your job, just like with an unfair dismissal claim. Typically the employment tribunal works out how long you have been or expect to be out of work and award you your loss of post-tax income for that period, subject to deductions for your own fault and any chance that you would have lost your job for other reasons.