This form of 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 these apply to race discrimination. It suggests good employment practices, covering managing equality and diversity issues, encouraging personal commitment, addressing any incidents of harassment or bullying, and reviewing all policies and procedures - such as recruitment and selection, performance management and development - to ensure they are fair.

Managing diversity and inclusion successfully is essential to good people management because everyone is different. Different perspectives, experiences and ideas challenge ‘group think’, stimulate creativity and innovation, and contribute to better business performance. Failure to deal with prejudice, stereotyping and unconscious bias regarding issues of personal identity, result in unfair decisions about the recruitment, development, retention and release of talent, and flawed approaches to the development and promotion of products and services to diverse markets.

Employers who take no action to promote diversity will quickly become less attractive to the diverse labour market for talent and skills, and they will lose out to competitors.

Following the vote to leave the EU, we are supporting a campaign to encourage employers to show leadership in challenging intolerance and to ensure those experiencing workplace racism feel supported.

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 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 an ongoing consultation may result in the Act being amended to expressly include caste.

In the UK, 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 publish a range of guidance on all aspects of the Equality Act (see Useful contacts). 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. For more information, visit the Equality and Human Rights Commission website (see Useful contacts).

Employers should screen policies and working practices to remove unfair discrimination and bias as part of a coherent diversity strategy. This is important to create an open workplace culture. 

Get an overview of managing diversity and the benefits it brings from our factsheet on diversity in the workplace.

Managing equality and diversity issues

Actions should focus on:

  • promoting a culture of personal responsibility for treating people with respect and dignity.
  • raising awareness about the importance of different views and ideas in connection with business performance.
  • making the business case for managing diversity and making this clear to everyone.
  • assigning responsibility to key change agents and influencers to ensure diversity management is driven into core business practices.
  • thinking inclusively when devising policies and procedures to make sure they’re practical and aim to cater appropriately for diverse needs and preferences.
  • monitoring and evaluating policies and practices regularly to refresh them and ensure they work.
  • tracking the impact of policies and practices with relevant facts and figures.

Engaging personal commitment

Key steps include:

  • Making standards of behaviour clear to everyone through regular and appropriate communication methods.
  • Emphasising the role of line managers in making sure policies and practices are acted on.
  • 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.
  • Auditing the employee profile to check how diverse this is by monitoring personal characteristics in an open, voluntary and honest way provides hard management data on which to judge progress. Employees need to feel confident in providing personal information and be assured that such information will be treated sensitively and in confidence and not be used against them in a discriminatory way. The Equality and Human Rights Commission provide practical guidance on monitoring.
  • Don’t tolerate harassment and bullying and be seen to act when incidents arise.
  • Consider introducing diversity support networks to identify ways of managing diversity issues in ways that add value to the business.
  • Make equality policies and statements easily accessible.

Some employment practices to consider for review

  • 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

Employers Network on Equality and Inclusion

Books

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

RUBENSTEIN, M. (2016) Discrimination: a guide to the relevant case law. 29th ed. London: Michael Rubenstein Publishing.

Visit the CIPD Store to see all our priced publications currently in print.

Journals

ASHTIANY, S. (2014) Caste discrimination in the UK: legal developments. Equal Opportunities Review. No 247, April/May. pp14-16.

Racial harassment in the workplace. (2011) IDS Employment Law Brief. No 937, November. pp12-19.

Young, gifted and blocked. (2013) Labour Research. Vol 102, No 4, April. pp10-12.

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.

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