Race and employment
Explore the UK legal position and main issues employers face when dealing with race discrimination in the workplace
Cases that demonstrate how race discrimination law works in practice
These key cases show how race discrimination is dealt by courts and tribunals. We summarise the facts of the case, the court’s evaluation of what happened, and the decision’s implications for organisations.
They should be read alongside our Race discrimination Q&As.
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Issue: indirect race discrimination – reason for discriminatory treatment
These two cases were heard together by the Supreme Court.
In Essop, the Home Office required all staff to pass Core Skills Assessments to become eligible for promotion to higher executive officer posts. Statistics indicated that fewer Black and Minority Ethnic (BME) candidates and those over 35 passed the assessment but did not establish why this was the case.
Essop, an immigration officer, alleged that being required to pass the core skills test as a prerequisite to promotion was indirectly discriminatory.
The Naeem case concerned the pay of prison chaplains. Their pay was based on length of service and, before 2002, Muslim chaplains were not engaged on a salaried basis due to lack of demand. The average length of service for Christian chaplains was, therefore, longer than for Muslim chaplains, which meant all Muslim chaplains received less pay than their Christian counterparts.
Naeem, an imam, had worked as a prison chaplain since 2001 and claimed the pay scale indirectly discriminated against him.
Indirect discrimination occurs when a seemingly neutral provision, criterion or practice (PCP) disadvantages a group of people who share a protected characteristic (sex, race, age and so on). If a PCP disadvantages any individual within that group, this is indirect discrimination unless an employer can objectively justify it by showing the PCP is a proportionate means of achieving a legitimate aim.
These cases address:
The matter eventually reached the Supreme Court which adjusted the legal test for indirect discrimination.
In the Essop case, the court found it did not matter why BME and older candidates were disadvantaged by the lower pass rate in the test. The disadvantage was enough to show indirect discrimination. In Naeem, this finding meant that there was no need to establish a direct link between being Muslim and the reason why the length of service in the pay scale disadvantaged Muslims.
So there was indirect discrimination in both cases, and it was then up to the employers involved to justify their use of the PCPs in order to avoid a finding of unlawful indirect discrimination. In the Naeem case, although there was indirect discrimination against Muslims, the Supreme Court was not willing to overturn the original employment tribunal’s finding that the pay scale being used for prison chaplains was justified.
This decision is not particularly helpful for employers because, while it does clarify indirect discrimination law, it also makes it easier to bring an indirect discrimination claim. Claimants now don’t need to provide an explanation for their disadvantage or establish the reason why the treatment discriminated against them. The essential element is a causal link between the provision and suffering a disadvantage.
There is no requirement for a PCP to put every member of the group at a disadvantage (in the Essop case, for example, it did not matter that some BME and older candidates did pass the tests) but claimants must be able to show a causal link between the PCP and their own disadvantage, which should be the same as the disadvantage caused to the group as a whole.
It does not matter that the PCP is not intended to treat anyone less favourably, and this case decides that it does not matter why a particular PCP causes a disadvantage either. If any PCP creates a disadvantage, then it needs to be justified or removed. The pool for considering the impact of any PCP should be all workers who are affected by it.
Where complaints are raised about any PC, employers must give careful consideration to what is alleged. If a higher proportion of one group fail to pass an assessment, or are in a different place on a pay scale, this should be investigated promptly.
To avoid such claims, employers should monitor how all policies and practices, such as recruitment procedures, pay reviews, promotions and disciplinary processes, affect various groups. Equal opportunities policies and manager training will help avoid such claims too.
(unreported, [2016] UKSC 31 22 June 2016, SC)
Issue: limited leave to remain
These two cases were heard together in the Supreme Court and both concerned Nigerian women who came to the UK on migrant domestic worker visas. Foreign workers on this type of visa have limited leave to remain in the UK and must obtain government approval if they change employer. The two women escaped and brought employment tribunal claims for race discrimination over their treatment.
The Taiwo case involved a woman who worked as a domestic worker, nanny and housekeeper. She was treated in an appalling manner, claimed that her passport was taken from her, she was expected to be ‘on duty’ during most of her waking hours, was given insufficient food and was mocked, slapped and spat on.
However, did the treatment amount to direct or indirect race discrimination?
In the Onu case a domestic worker brought various claims against her former employer alleging that she was exploited and badly treated, being paid less than the national minimum wage, being required to work 84 hours per week and told that she would be arrested and imprisoned if she tried to run away.
Both race discrimination claims were unsuccessful in the lower courts on the basis that their former employers had mistreated them because of their immigration status, rather than their Nigerian nationality. (However both women were awarded significant sums by the employment tribunals for unpaid wages, the national minimum wage, holiday pay and failure to give rest breaks.)
In the Supreme Court (SC) the main issue was whether discrimination on the grounds of immigration status amounts to race discrimination on the grounds of nationality. Are immigration status and nationality so closely linked as to constitute race discrimination? The SC held that the unfavourable treatment of the employees did not constitute direct or indirect race discrimination. They were mistreated because of their vulnerability and dependence on their employers to stay in the UK; it had nothing to do with the fact that they were Nigerian. This meant there was no direct discrimination and as no provision, criterion or practice had been identified there was no indirect discrimination either. Although there could be indirect discrimination in relation to the exploitation of other migrant workers.
Bad treatment on the grounds of vulnerability for reasons including economic and immigration status does not constitute race discrimination. It may, however, give rise to contractual claims for breach of the implied duty of trust and confidence or other claims, even criminal prosecutions in some cases.
Immigration status on its own is not a protected characteristic under the Equality Act 2010.
Domestic workers may still claim for unfair dismissal if they have employee status and under the national minimum wage legislation and the Working Time regulations.
The SC suggested that the Modern Slavery Act 2015 should be extended to employment tribunals to enable compensation for humiliation and distress experienced by such workers as the current law inadequately protects vulnerable migrant domestic workers.
As a matter of good practice, employers should take steps to ensure that no managers or other employees victimise employees either before, or after they have left, employment.
(unreported, Case C-83/14 16 July 2015, ECJ)
Issue: Race discrimination - by association
A Bulgarian electricity company placed all the electricity meters 6 to 7 metres high (instead of the usual 1.7 metres) in a district of a town where the residents were mainly of Roma ethnic origin. There had been cases of tampering with meters and unlawful connections to the electricity network which triggered the decision to raise their height.
A grocer in that district was unable to read her electricity meter as it was too high. She could not monitor her electricity use and check the alleged usage on her bills which were also too high.
She claimed indirect discrimination on grounds of ethnicity as although she was not of Roma origin herself, she suffered the same particular disadvantage.
The Bulgarian Administrative Court referred the following crucial issues to the European Court of Justice (ECJ):
The Advocate General recognised that the electricity company’s actions affected both people with the protected characteristic and those affected by association with them. The ECJ followed this opinion and held that those who suffer less favourable treatment because of a discriminatory measure can claim discrimination by association, even if they do not belong to the minority protected ethnic group.
Although the grocer was not of Roma origin she suffered a ‘particular disadvantage' and should be able to bring her claim of indirect discrimination. The words ‘particular disadvantage’ did not mean there has to be a serious case of inequality, but ‘particularly’ means that the practice puts far more persons of a given ethnic origin at a disadvantage. The case then returned to the Bulgarian court to decide if direct or indirect discrimination had taken place in this case.
(unreported, ET/3400174/13 17 September 2015)
Issue: Race discrimination - Caste
The claimant was of the Adivasi caste, and was employed as a domestic servant. She originally worked for her employers in India and then in the UK. The employers were alleged to have considered her to be of lower status as belonging to a caste comparable to the untouchables and that this view was tainted by caste discrimination. The caste system is a historical concept emanating from the Hindu community in India, but also found in other parts of the world. The caste system separates people into groups based on birth, marriage and occupation.
The employee brought a claim for unfair dismissal, unpaid wages and race and caste discrimination. The employers applied to strike out the complaint of caste discrimination as there was no legislation expressly outlawing caste discrimination in the UK as yet.
The Employment Appeal Tribunal (EAT) held that the employee could bring a claim for caste discrimination. Although caste is not yet explicitly mentioned in the Equality Act 2010, it does fall under the ‘ethnic or national origins’ wording. The fact that the Government are considering legislating to specifically to include caste discrimination, but had not yet done so, was not determinative of the issue. The reasons behind the EAT decision include:
The case then returned to the employment tribunal where the employee won on a wide range of claims including that:
The employee was initially awarded £183,773.53 for unlawful deductions, with further compensation for discrimination and unfair dismissal etc to follow. The final judgment did not take the caste issue further as they decided that there was unjustified indirect religious discrimination anyway.
(unreported, [2014] UKSC 47 30 July 2014, SC)
Issue: Illegal working - race discrimination
A Nigerian national was employed unlawfully by a family as an au pair. She did not have permission to work in the UK and lied to the authorities in Nigeria to obtain a six-month visitor’s visa. Both the au pair and the family knew about the unlawful nature of the employment. When she was dismissed she brought claims for race discrimination, unfair dismissal, breach of contract and unpaid wages and holiday pay.
The Court of Appeal (CA) held that the au pair’s discrimination claim was inextricably linked with her illegal conduct. If she were allowed to pursue her discrimination claims and rely on her illegal actions, the CA would be condoning her illegality which it would not do.
However the Supreme Court disagreed and said there was not a sufficiently close connection between the au pair's illegal immigration and the unlawful discrimination, so she could bring her claim. The illegality concerned the employee’s ability to lawfully enter into a contract of employment and not the acts which took place during the employment. The illegality of the contract of employment was not enough to prevent the au pair from bringing a claim for unlawful discrimination.
(unreported, [2014] Civ 279 13 March 2014, CA)
Issue: Migrant workers - race discrimination
A Nigerian woman worked as a domestic worker, nanny and housekeeper, under a migrant worker visa. She was treated in an appalling manner by the Respondents and claimed race discrimination against them. However, did the treatment amount to direct or indirect race discrimination? Whilst the tribunal proceedings were adjourned, her former employers sent the tribunal bundle to the UK Border Agency to try and get her immigration status overturned. The EAT held that the unfavourable treatment of the employee did not constitute direct or indirect race discrimination. She was mistreated partly because of her vulnerability, lack of English and dependence on her employer to stay in the UK. She had low socio-economic status and there was an imbalance of power in the relationship between her and the Respondents and these were reasons for her poor treatment as well. Therefore the cause of the unfavourable treatment was not just linked to her immigration status. There was no indirect discrimination either because no provision, criterion or practice had been identified.
Before it reached the EAT the case also previously highlighted a drafting error in the Equality Act 2010 on victimisation, which appears to limit victimisation claims to events taking place before or during the employment relationship. The judge therefore took what is known as a purposive approach to the legislation, by looking at the context in which the legislation was made and as a result interpreted it as covering victimisation during and post-employment.
The Court of Appeal decided on another point as well, ruling that employers who mistreat employees because they were vulnerable migrant workers did not discriminate on the grounds of race. For race discrimination to be made out it would be necessary to show that there was an exact correspondence between being a vulnerable migrant worker and having one of the protected characteristics. Since many migrant workers are not vulnerable and are not exploited, their treatment could not be said to amount to direct discrimination.
A final aspect to the case concerned costs which in this case had been borne by a Law Centre, funded in part by the Legal Services Commission. It was held that the previous Employment Tribunal rules had changed and a claim for costs was allowed, even though the costs had been incurred by a third party who was funding litigation and the litigant themselves had not incurred the cost.
Bad treatment on the grounds of vulnerability for reasons including economic and immigration status does not constitute race discrimination. It may, however, give rise to contractual claims for breach of the implied duty of trust and confidence or other claims, even criminal prosecutions in some cases.
There is an issue concerning whether post-employment discrimination (for example ex-employers' wording of references) is covered by the Equality Act 2010 victimisation provisions.
There is another case Jessemey v Rowstock Ltd and another(unreported, [2014] EWCA Civ 185 26 February 2014, CA) which has decided that the Equality Act 2010 covers post-employment victimisation. Therefore the law will need to be clarified. As a matter of best practice, employers should take steps to ensure that no managers or other employees victimise employees either before, or after they have left, employment.
Funding by Law Centres, Equality Human Rights Commission and other third party funders will not prevent claims for costs.
(unreported, [2014] Civ 279 13 March 2014, CA)
Issue: Race discrimination - post employment victimisation
A Nigerian born domestic worker, brought various claims against her former employer, alleging that she was exploited and badly treated, being paid less than the national minimum wage. She also claimed race discrimination under the Equality Act 2010 for victimisation which occurred some months after her employment ended. The former employer had allegedly telephoned the employee’s sister in Nigeria to say that she had sued her former employer and would suffer as a result.
However, the Employment Appeal Tribunal (EAT) and Court of Appeal held that there had been post-employment victimisation when the employer called the employee’s sister stating that she would suffer for bringing claims against him, concluding that:
(unreported, [2013] EWCA Civ 22 29 January 2013, CA)
Issue: Race and sex discrimination - joint liability
A claimant, a trained barrister, was not appointed to the post of a Training and Development Co-ordinator and Race Discrimination Caseworker and said that this was due to sex and race discrimination. She personally claimed against members of the interview panel as well as the council and she also brought a victimisation claim based on earlier tribunal complaints.
The claimant was awarded total compensation in the region of £421,000. The EAT held that where more than one party is found to be guilty of discrimination, all the liable respondents should be jointly and severally liable for the entire award of compensation. This means that she could recover the full amount of loss from the employer or any of the individual respondents. This was instead of apportioning liability between the respondents, as often happens. The position would be different if there is a basis for distinguishing the damage caused by each party, but this is not generally the case.
[2012] EWCA Civ 1590
Issue: Race discrimination - time limits in bringing a claim
The Appellants in this case were engaged through agencies to work at Taylor Woodrow sites on the Docklands Light Railway. One day when they turned up for work there was no work available, an altercation arose and they were banned from any of Taylor Woodrow's sites in respect of the Docklands Light Railway which was later repeated when they tried to enter another site. Both claimed that the decision to ban them was race discrimination and they claimed this and unlawful deduction of wages.
The key issue initially before the Tribunal was whether they were entitled to pursue a claim more than 3 months from the imposition of the ban. The matter reached the Court of Appeal which held that the ban was a one-off, not a continuing act and that a claim had to be made within three months. The ban had been reiterated on 18 April 2008; this was the latest date on which time could have begun to run so the claims were out of time.
Employers who use agency workers and operate bans may in some circumstances face discrimination claims by the affected agency workers.
Any claims need to be brought within three months of the ban being imposed at the start.
Employers who ban workers should keep a careful record of why they did so to avoid allegations of discrimination.
Employers who turn workers away as a result of a ban may commit a separate act which could initiate a new three-month time limit.
[2012] UKSC 37, 26 June 2012
Issue: Sex and race discrimination - burden of proofThe Head of the Orthodontics Department (who was born in Sri Lanka) brought claims for sex and race discrimination alleging that she had been bullied and harassed by two managers.
She had previously complained to the Chief Executive comparing her treatment with that of two white male consultants, but after an investigation it was recommended that no action be taken. The claimant’s circumstances were not exactly the same as either comparator, but the employment tribunal found there was sufficient similarity and the difference in treatment justified the tribunal's inference of discrimination. It was then for the employer to prove it had not discriminated which it failed to do.
One of the key matters in the case concerned the burden of proof. The matter eventually reached the Supreme Court who declined to give further guidance, saying the approach set out in previous cases was clear. The burden of proof shifts to the employer where the claimant shows a prima facie case of discrimination.
Please note: While every care has been taken in compiling these notes, CIPD cannot be held responsible for any errors or omissions. These notes are not intended to be a substitute for specific legal advice.
Explore the UK legal position and main issues employers face when dealing with race discrimination in the workplace
An introduction to the law on race discrimination in the workplace