In Great Britain, discrimination on the grounds of race, first introduced by the Race Relations Act 1976, is now contained within the Equality Act 2010.
The Equality and Human Rights Commission (EHRC) has published guidance on race discrimination and the Equality Act including a Code of practice on employment. Whilst not legally binding, the codes give important guidance on good practice and failing 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.
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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.
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:
- a provision, criterion or practice is applied to all, and:
- it puts a group with a protected characteristic at a disadvantage when compared with another group
- an individual is put at a disadvantage
- 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.
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 harassment and bullying factsheet.
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 very carefully. Different provisions apply concerning positive action relating to recruitment and promotion. See guidance from the EHRC.