Race and employment

For the purposes of the Equality Act 2010, race includes colour, nationality and ethnic or national origins. A racial group can be made up of one or more distinct racial groups, for example Black, White, Chinese, Romanian, black Briton, British Asian, Romany Gypsies and Irish Travellers.

According to some case law, caste is also included, but in its response to a consultation, the Government has decided against further legislation, and to rely instead on emerging case-law to provide the necessary protection against unlawful discrimination because of caste.

The need to take action on race inequality in the workplace.

High-profile government-initiated work has set the stimulus for action on racial diversity. Sir John Parker’s report into the ethnic diversity of UK boards in 2016 firmly drew attention to the fact that the boards of FTSE 100 organisations don’t reflect the ethnic diversity of the UK population or of their stakeholders. In 2017 Baroness Ruby McGregor-Smith led an independent review on race in the workplace, citing government figures that show the significant economic contribution that could come from taking action: ‘The potential benefit to the UK economy from full representation of Black and Minority Ethnic (BME) individuals across the labour market through improved participation and progression is estimated to be £24 billion per annum, which represents 1.3% of GDP in the year to June 2016’.

The issue is not just at the top of organisations. Research by Demos for the Joseph Rowntree Foundation affirms that ‘people from ethnic minority groups are often at a disadvantage in the labour market. They are more likely to be unemployed than white British people, are over-represented in poorly paid and unstable jobs, and are less able to secure opportunities for job progression or employment which matches their skills and abilities.’ Recognising people for their skills and talents at work, without ethnicity being an issue, remains an aspiration rather than reality. 

Listen to our podcast - Why is it so hard to talk about BAME?

In Great Britain, discrimination on the grounds of race, originally introduced by the Race Relations Act 1976, is now contained within the Equality Act 2010.

The Equality and Human Rights Commission has published a range of guidance on all aspects of the Equality Act, including a Code of practice on employment. Whilst not legally binding documents, the codes give important guidance on good practice and failure to follow them may be taken into account by tribunals or courts. CIPD members can find out more in our Race discrimination law Q&As.

In the referendum on 23 June 2016 the UK voted to leave the EU. Our Brexit hub has more on what the implications might be for employment law.

Types of discrimination

Within the Equality Act 2010 there are a number of different types of discrimination. These apply to the protected characteristics, which includes race.

Direct discrimination

This applies to all protected characteristics. It’s treating someone less favourably than another person because of a protected characteristic that they have. For example, it’s refusing to employ an individual because they are black.

Indirect discrimination

Indirect discrimination occurs when:

1. a provision, criterion or practice is applied to all, and:
2. it puts a group with a protected characteristic at a disadvantage when compared with another group
3. an individual is put at a disadvantage
4. the employer cannot show it to be a proportionate means of achieving a legitimate aim.

For example, if a recruitment policy requires individuals to live within a certain geographical area or postcode which puts those of certain ethnic origins at a disadvantage in applying for the job when compared to others, and that puts an individual at a disadvantage, then it would be indirect discrimination unless the employer could show that the residence criteria was justified.

Associative discrimination

This is treating someone less favourably because they associate with an individual who has a protected characteristic. For example, treating someone less favourably because they spend their spare time socialising with people of a certain race, even though they are of a different race themselves.

Perceptive discrimination

This is treating someone less favourably because it’s perceived that they have a protected characteristic, whether they do or not. For example, not recruiting someone because it’s thought they are of certain nationality when in fact they are not.

Victimisation

Victimisation occurs when someone is treated less favourably because they’ve made or supported a complaint, or raised a grievance under the Equality Act 2010. It also applies if it’s thought that they have made a complaint. A comparator isn’t required for a claim of victimisation. Post-employment victimisation can occur - for example, refusing to give a reference to someone who had made a complaint under the Equality Act 2010 - although the Act has some grey areas concerning post-employment victimisation.

Harassment

Harassment is ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual’.

There’s no longer any specific legislation making employers liable for harassment that comes from a third party (for example, a customer). However an employer can still be liable as a result of numerous other legal duties, for example breach of contract, direct discrimination and under the Protection from Harassment Act 1997. This, and good practice, mean that employers should continue to take steps to protect employees from all forms of harassment. 

Find out more in our factsheet on workplace bullying and harassment.

Occupational Requirement

Very unusually, there may be an Occupational Requirement to employ a person of a particular race. If so, certain exceptions from the law are permitted covering selection, promotion and training. The employer must be able to show that there’s a genuine need, taking account of the type of work.

Positive action

Employers can take positive action, for example to address under-representation or other forms of disadvantage within the workforce. The provisions are complex and must be handled carefully. Different provisions apply concerning positive action relating to recruitment and promotion. See the guidance from Citizen’s Advice.

As part of coherent diversity, inclusion and employee engagement strategies, employers should undertake thorough reviews or equality analyses of policies and working practices to remove unfair discrimination and bias. This is key to creating open workplace cultures where to be different is not a problem but an asset. However, we know that there’s still a considerable way to go until this is a reality with regards to race.

Although there’s no legal requirement to have a written diversity policy, it’s a good idea to produce one to demonstrate the organisation takes its legal and moral obligations towards being a diverse employer seriously. It can also encourage employees to treat others equally.

Our report Addressing the barriers to BAME employee career progression to the top is designed to help employers create racially-inclusive workplaces. It provides an overview of some of the major research and policy papers over the past five years, bringing together in one place what we know about the extent of ethnic inequality, and what we know so far about where the barriers to in-work progression lie. The report also includes the results from our survey into the career blockers and enablers experienced by workers from different ethnic groups. As well as recommendations for action for both employers and policy makers, there are case study examples of practice from three organisations that are actively driving change in this area.

Recommendations for employers include:

• Understand what is happening in your organisation, identifying the structural and cultural barriers which are maintaining racial inequality in the workplace. An evidence-based approach is what will help you get to the root of issues in your particular context.

• Avoid making generalisations as the term BAME encompasses people from a wide range of backgrounds, cultures and traditions who are facing different barriers to career progression.

• When examining the work experience of people with a particular ethnic background, be aware of the potential interplay between this identity and others. For example, does being a woman from an ethnic minority background mean you have more equal opportunities through progress on gender, but are still at a disadvantage at work because of being from a minority ethnic group?

• Critically appraise your organisation culture. Inclusive cultures where a range of people from different ethnic backgrounds feel able to be themselves and give their ideas enables people to perform at their best at work. Without this, the under-utilisation of talent will continue.

• HR policies and processes that promote race diversity and inclusion can set expectations, but they need to be regularly reviewed with a critical lens and underpinned by principles that actively celebrate and encourage differences.

• Actively encourage employee voice to inform change. Ensure mechanisms are in place through which employees, including minority ethnic groups, can highlight issues about inequality and have a view on matters affecting them at work.

• Address unconscious bias. There’s practical guidance on avoiding bias in recruitment in our report A head for hiring: the behavioural science of recruitment and selection.

Creating a racially-diverse and inclusive workplace and engaging personal commitment

Actions should focus on:

• Making standards of behaviour clear to everyone through regular and appropriate communication methods, promoting a culture of personal responsibility for treating people with respect and dignity and adopting a zero tolerance approach to race discrimination.

• Raising awareness about the importance of different views and ideas in connection with business performance.

• Providing suitable training to ensure people understand what equality and race and diversity are and how to respond to issues. Participative workshops, events and campaigns are useful - it’s not sufficient to simply send an email saying that a policy is available.

• Thinking inclusively when devising policies and procedures to make sure they’re practical and aim to cater appropriately for the needs and preferences of a racially diverse workforce.

• Monitoring and evaluating policies and practices regularly to refresh them and ensure they are in support of diverse workplace, where everyone feels they belong, regardless of race or ethnic background.

• Emphasising the role of line managers in making sure policies and practices are implemented in a fair and transparent way across the workforce and in creating a safe and inclusive working environment.

• Tracking the impact of policies and practices with relevant facts and figures.

Reviewing employment practices

• Check recruitment processes aren’t open to discrimination on the basis of race. Take care in drafting and placing advertisements to avoid discrimination and stereotyping through language and images. Be sensitive when arranging dates for interviews. Indicate if any genuine Occupational Requirements apply.

• Make sure appraisal and performance management processes aren’t biased and check that career paths and promotion and training opportunities are inclusive for all employees.

• Review policies and procedures related to, for example: flexible working practices, dress code/uniforms, flexible canteen menus, and terms and conditions, to ensure they don’t discriminate on the basis of race.

Contacts

Acas - Race discrimination

GOV.UK - Employers: preventing discrimination

Equality and Human Rights Commission - Race discrimination 

Government Equalities Office

Employers Network on Equality and Inclusion

Race at Work Charter

Books and reports

ACAS. (2018) Race discrimination: key points for the workplace. London: Acas.

EQUALITY AND HUMAN RIGHTS COMMISSION (2018) Data deficit hampering progression of ethnic minority and disabled people at work. Manchester: EHRC.

PYPER, D. (2014) The Equality Act 2010: caste discrimination. Commons Library Standard Note. London: House of Commons Library.

RUBENSTEIN, M. (2019) Discrimination: a guide to the relevant case law. 32nd ed. London: Michael Rubenstein Publishing.

Journal articles

BURT, E. (2018) One in four BAME employees witnessed racist bullying from managers in the last two years. People Management (online). 31 October.

FULLER, G. (2018) Half of employees have witnessed racism at work, says survey. People Management (online). 2 March.

McCARTNEY, C. (2018) Ethnicity pay reporting and our consultation response. CIPD Voice. Issue 16, 29 November.

McCARTNEY, C. (2018) Tackling racial disadvantages and discrimination in the workplace. CIPD Voice. Issue 15, 3 September.

CIPD members can use our online journals to find articles from over 300 journal titles relevant to HR.

Members and People Management subscribers can see articles on the People Management website.