Explore the UK legal position and main issues employers face when dealing with race discrimination in the workplace
Race discrimination, illegal in the UK since 1976, arises when someone is unfairly disadvantaged for reasons related to their race which, for the purposes of the Equality Act 2010, includes colour, nationality and ethnic or national origins. Caste may also be specifically included in future. To change attitudes, organisations should promote an open culture of respect and dignity for all employees, and value difference.
This factsheet offers an overview of the different types of discrimination, with examples of how they apply applies to race discrimination. It highlights the need for employers to take action and suggests good employment practices to ensure everyone has fair access and opportunity to progress in work, regardless of racial or ethnic background.
An individual’s ethnic origin shouldn’t affect whether they get a job or benefit from training and racial discrimination should not be tolerated. Everyone deserves the opportunity to develop their skills and talents to their full potential, work in a safe and inclusive environment, be fairly rewarded for their work, and have a voice in their organisation.
However, in the UK we still have a long way to go to be able to claim there is equal access to employment and progression opportunities across ethnicities. In addition to the cost to individuals of missing out on job opportunities due to prejudice or bias, employers who don’t take action will forgo attracting people from a wider talent pool, and inequalities in progression opportunities mean people’s skills will be under-utilised.
HR has a central role to play in evidencing the need for action on racial inequalities, drawing insight from workforce data about where the blockers and enablers of access to work and progression lie for different ethnic groups. HR policies can set expectations, including a zero tolerance approach to racial discrimination, but policies alone won’t bring about change; they need to be brought alive by the behaviour of everyone in the workplace. Working across the organisation, HR needs to challenge people management practices as well as shape the culture to drive faster change on race equality.
At the CIPD we are proud of our work to demonstrate diversity and inclusion in the workplace. This includes refreshing our policies to ensure all our language is inclusive. We have a broad Diversity and Inclusion Group, which includes representatives from HR and the EmbRACE subgroup focussing on race issues
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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, and a Government consultation which ended in September 2017 may result in the Act being amended to expressly include caste.
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 predominantly white British make-up of UK FTSE boards is an undeniable signal that change is long overdue and the pace of progress needs to increase. Recent research by Green Park into the ethno-cultural diversity in FTSE 100 companies found there’s the same number of non-white CEOs as in 2015 (a very low 4%). Just 2% of FTSE 100 Chief Financial Officers are non-white. And there’s been a decline in the number of minority executive directors.
The issue is not just at the top of organisations. Business in the Community assert ‘ethnic minorities’ experiences of work are still less positive than their white counterparts’. Their Race at Work 2015 report found that although 1 in 8 people of working age in the UK are from a Black, Asian and Minority Ethnic (BAME) background, they hold only 1 in 16 top management positions. 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 overrepresented 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. We still have a long way to go to be able to claim equal access to employment and progression opportunities across ethnicities.
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.
Within the Equality Act 2010 there are a number of different types of discrimination. These apply to the protected characteristics, which includes race.
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 occurs when:
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.
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.
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 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 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.
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.
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.
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.
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.
GOV.UK - Employers: preventing discrimination
Equality and Human Rights Commission - Race discrimination
Employers Network on Equality and Inclusion
ACAS. (2018) Race discrimination: key points for the workplace. London: Acas.
PYPER, D. (2014) The Equality Act 2010: caste discrimination. Commons Library Standard Note. London: House of Commons Library.
RUBENSTEIN, M. (2018) Discrimination: a guide to the relevant case law. 31st ed. London: Michael Rubenstein Publishing.
FULLER, G. (2018) Half of employees have witnessed racism at work, says survey. PM Daily. 2 March.
MAKOFF, A. (2017) Businesses still ‘in denial’ about racial barriers at work. PM Daily. 28 February.
MILLER, J. (2017) Real change on racial equality at work requires more action. CIPD Voice. No 9. April.
Racial harassment in the workplace. (2011) IDS Employment Law Brief. No 937, November. pp12-19.
When your face doesn't fit. (2015) IDS Employment Law Brief HR. No 1032, November. pp14-19.
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.
This factsheet was last updated by Lisa Ayling, solicitor and employment law specialist, and Jill Miller.
Jill joined the CIPD in 2008. Her role is a combination of rigorous research and active engagement with policy makers, academics and practitioners to inform projects and shape thinking.
She frequently presents on key people management issues, leads discussions and workshops, and is invited to write for trade press as well as offer comment to national journalists, on radio and TV. She specialises in diversity and inclusion, employee well-being, people management in SMEs and future HR trends.
Episode 137: We look at why organisations find it more difficult to talk about BAME diversity than gender diversity and HR’s role in supporting change.
Commonly asked questions on the legal issues relating to race discrimination in the workplace
Offers insight, support and guidance for employers and examines barriers to access and progression within their business context
