Legislation overview

The key legislation covering race discrimination from 1 October 2010 onwards is the Equality Act 2010. This is the most significant overhaul of the legislation covering race discrimination since the initial 1970's.

For cases arising before 1 October 2010, the key legislation was the Race Relations Act 1976 and the numerous statutory instruments which amended and supported that Act.

Other important legislation included numerous EC Directives including the Race Directive (2000/43/EC) and EC Equal Treatment Framework Directive (2000/78/EC) which helped form some of the UK legislation.

Other legislation which may apply to race discrimination claims include:

  • Racial and Religious Hatred Act 2006
  • Protection from Harassment Act 1997
  • Modern Slavery Act 2015.

There is also a helpful and detailed Code of practice on employment and other non-statutory guidance available on the Equality and Human Rights Commission website.

Answer:

The relevant provisions of the Equality Act 2010 which came into force on 1 October 2010 set out a number of protected characteristics, split into several categories. The Equality Act 2010 confirms that the protected characteristic governing ‘race’ includes the following:

  • colour
  • race
  • nationality (including citizenship)
  • ethnic origins
  • national origins.

Case law examples of persons who were covered by the RRA and are likely to fall within the Equality Act 2010 provisions include the English, Jews, Sikhs, Romany gypsies and Scots.

Problems have arisen previously concerning the status of Scottish gypsy travellers - see case law example below. Note that in some cases, but not all, there may be an overlap in with religious discrimination, and indeed employees may claim both racial and religious discrimination in tandem. Both claims will occur if there is a link between a religious group and a racial group.

Case law examples

Some interesting cases under the old law have concerned the meaning of ‘racial grounds’ or a ‘racial group’. These examples remain useful indications of who are covered under the Equality Act 2010.

In R v Rogers [2007] UKHL 8, 28 February 2007, HL three young Spanish women were abused after a pavement altercation by a man riding a mobility scooter who called them 'bloody foreigners' and told them to 'go back to your own country'. If they had been called ' bloody Spaniards' the House of Lords said that would clearly have been enough to constitute a racial group. However, the House of Lords also confirmed that persons who are not of British origin (i.e. ‘all foreigners’) do constitute a racial group within the meaning of the Crime and Disorder Act 1998. This does not mean the same decision would necessarily apply in an employment context.

In Serco Ltd v Redfearn [2006] IRLR 623, CA a racist employee belonging to a racist group (namely the BNP) claimed he had been discriminated against on racial grounds. This may be thought to be paradoxical as the legislation could presumably not have been intended to protect members of such an organisation. However, the employee who was a driver in the Bradford area was dismissed following a local newspaper article which identified him as a BNP candidate in local elections. The dismissal was said to be for health and safety reasons resulting from a fear of hostility from fellow employees and patients, working as he did within a multi-ethnic community.

The employee, who had insufficient length of service to claim unfair dismissal claimed he had been discriminated against, both directly and indirectly, 'on racial grounds'. The Court of Appeal said that the employer had not committed unlawful race discrimination. He was dismissed because his continuing employment might lead to violence in the workplace. He was no more dismissed 'on racial grounds' than an employee who was dismissed for racially abusing his employer, a fellow employee or a valued customer.

In MacLennan v Gypsy Traveller Education and Information Project (unreported, S/13272/07 599/132) the Gypsy Traveller Education and Information Project argued that their former employee could not claim under the RRA at all, as Scottish gypsy travellers were not of Romany descent and were therefore not an ethnic group. The initial tribunal agreed they were not a separate ethnic group but further decisions on this are anticipated.

In R( E) v The Governing Body of JFS (formerly the Jews' Free School) (unreported, [2009] EWCA Civ 626, 25 June 2009, CA), the Court of Appeal confirmed that Jews constitute a racial group defined by ethnic origin, but also encompassing those included by conversion. (Of course there is a potential overlap with religious discrimination here as well).

Caste discrimination

Caste discrimination is not currently specifically covered in the UK. Some case law suggests that the definition of race in Section 9 of the Equality Act 2010 does not cover caste discrimination, although other cases have held that caste is already protected under the general concept of race. Legislative changes to clarify this aspect are currently the subject of a lengthy consultation process. For more information see the related Q&A Are there any future developments expected in the area of race discrimination?.

Answer:

As in all cases of discrimination, the most crucial aspect to remember about race discrimination compensation is that it is uncapped.

According to Employment Tribunal Service statistics, the average compensation for cases with an element of race discrimination between April 2014 and March 2015 was £17.040 (compared to £11,203 the previous year). The median award was £8,025 for race discrimination. The maximum award was £209,188. However in previous years the largest payment has been as high as £4,445,023 which was an award for NHS workers who had a high loss of earnings and lost pension (see below for details of the cases).

Employers are rarely ordered to pay compensation for loss of earnings right up until the employee retires. However when such an order is made it can result in a huge award.

For general guidance on the approach to the calculation of compensation in a discrimination context, see our Tribunal claims, settlement and compromise Q&As which address the elements of financial loss, injury to feelings and aggravated damages

Case law examples

D'Souza v London Borough of Lambeth [1997] IRLR 677, EAT is an extreme example of race discrimination compensation in excess of the average awards. The total award was £358,288.73. Some £3,000 was for injury to feelings, £2,000 was exemplary damages, £18,269 was for lost pension rights but the key element was for loss of future earnings amounting to some £300,000. Discrimination cases where the complainant was on a significant remuneration package or suffers considerable loss of earnings can attract high levels of awards.

In Ministry of Defence v DeBique [2010] IRLR 471 EAT a soldier from St Vincent and the Grenadines who was also a single parent was disciplined after being late for parade because she was looking after her sick child. She was told that the Army was 'unsuitable for a single mother who couldn’t sort out her child care arrangements'. She left the army and commenced race and sex discrimination proceedings, seeking compensation of £1.14m. This encompassed loss of earnings, loss of benefits including healthcare and education for her daughter, loss of pension rights, hurt feelings and aggravated damages. She had been offered a five-year posting to a garrison which has childcare facilities. In April 2010 an employment tribunal awarded just over £17,000, including interest. This award was for injury to feelings, but there was no of loss of earnings award as it was unreasonable to have turned down the special posting. The tribunal also agreed with the employer that the soldier had not made sufficient effort to seek alternative work, thereby mitigating her losses.

In Michalak v Mid Yorkshire Hospitals NHS Trust (unreported, ET/1810815/08 December 2011, ET) a Polish born doctor worked as a consultant for an NHS Trust. A year or so after her appointment she went on maternity leave and it was understood to be the first time that a consultant in her department had done so. On her return, she queried some pay rises from which she thought she had been excluded. She said that following her complaint, a campaign was mounted against her, accusing her of bullying and harassment and so forth. After numerous secret meetings and a lengthy suspension she was dismissed. By the time of her dismissal, she was suffering from chronic post-traumatic stress disorder and was very unlikely to work again. She was awarded £4,445,023 for race and sex discrimination. The award included forecasted future loss of earnings, loss of pension and compensation for psychiatric injury. It was also ‘grossed up’ to allow for the tax payable on it. As she was in the early stages of her career as a doctor, the award was based on what she would have earned as a consultant until she was 68.

Interestingly, three individual employees from the trust were jointly liable with the Trust for the award, including the former head of the department, the former medical director, the interim chief executive and the director of human resources.

In Browne v Central Manchester University NHS Foundation Trust (unreported, ET/2407264/07, ET/2405865/08, ET/2408501/08 December 2011, ET) the claimant was the only black Divisional Director in the Trust and had spent his entire career in the NHS. A disciplinary procedure was found to be a sham with a predetermined decision to dismiss. He was unfairly dismissed and discriminated against on the grounds of his race. He ended up with serious depression and (although he would be able to do some private consultancy work) he would never reach the same level of income that he had in the NHS. He received £933,115 for future loss of earnings, pension loss, personal injury and aggravated damages.

Many tribunal awards will be at a lower level.

Answer:

Yes, it is unlawful to discriminate on racial grounds where the discrimination arises out of and is closely connected with a relevant relationship such as an employment relationship. This would include post-employment issues such as a refusal to provide a reference.

Previous amendments to the old Race Relations Act 1976 and the Equality Act 2010 which came into force on 1 October 2010 both make it clear that post-employment discrimination such as references are covered. However there has been some confusion particularly with respect to victimisation claims as it was not clear whether the Equality Act 2010 covered any victimisation after the employment has ended

For more information on discrimination claims relating to references and any victimisation claims arising see the Q&A What type of discrimination or detriment claim can arise if an employer refuses to give a reference? in our References Q&As.

Answer:

Examples of the different forms of discrimination in a race discrimination context are:

Direct discrimination

An employer is liable for direct discrimination on racial grounds when a person is treated less favourably than someone else because of their colour, race, nationality or ethnic or national origins (including citizenship).

Direct discrimination remains essentially unchanged under provisions in the Equality Act 2010 which came into force on 1 October 2010. It is now clear that a form of direct discrimination occurs when someone is treated less favourably than another because they are thought to have a protected characteristic (perceived discrimination) or because they associate with someone who has a protected characteristic (associative discrimination).

Complainants alleging direct discrimination have to compare themselves with either an actual or hypothetical comparator to show less favourable treatment. A black person would have to show that they have been less favourably treated than a white person either was, or would have been, treated in similar circumstances.

An example of direct discrimination would be to refuse a candidate for promotion because of their colour, race, nationality or ethnic or national origins (including citizenship).

Unlike in cases of indirect race discrimination, there is no concept of a defence based upon a proportionate means of achieving a legitimate aim.

Indirect discrimination

Indirect racial discrimination can be summarised as the application of a provision, criterion or practice by one person against another which is discriminatory in relation to a relevant protected characteristic. In this case colour, race, nationality or ethnic or national origins etc.

Under the Equality Act 2010 an employer will discriminate against an individual where they apply to that individual a provision, criteria or practice which would apply equally to persons not of the same race, colour, ethnic or national origins (including citizenship) as that individual but:

  • which puts or would put persons of the same race, colour, ethnic or national origins (including citizenship) as that individual at a particular disadvantage when compared with other persons
  • which puts or would put that individual at a disadvantage
  • which they cannot show to be a proportionate means of achieving a legitimate aim.

'Provision, criteria or practice' covers a somewhat wide range of possibilities including formal and informal arrangements.

Some examples of indirect discrimination are:

  • An organisation which requires assistant managers to complete an internal training course as a pre- requisite to promotion and the training courses always take place late on Friday afternoons. This is a provision which is applied to all relevant staff regardless of creed; however, it may put Muslim or Jewish assistant managers at a disadvantage. Such a provision is indirectly discriminatory. It is unlikely that the organisation would be able to show this requirement pursued a legitimate aim and that it was proportionate. This would also constitute religious discrimination.

  • A specification by an organisation that job applicants must not come from within a certain postcode area, when it can be shown that in reality that means a considerably smaller proportion of people of a particular racial group can apply for the job when compared to members of other racial groups.
  • A school’s uniform policy which banned a braids hairstyle for all pupils constituted indirect race discrimination, but not sex discrimination. Some people of African-Caribbean ethnicity regard the cutting of their hair to be wrong, so that they need their hair to be kept in cornrows. Therefore the blanket policy effectively banning cornrows placed those pupils at a particular disadvantage. The School's arguments that a blanket policy could be justified were rejected. (See SG v St Gregory’s Catholic Science College (unreported, [2011] EWHC 1452 17 June 2011, HC).
  • An organisation's uniform policy which bans headwear entirely. This is a provision which is applied to all relevant staff regardless of creed; however, it may put Muslim women or Sikh men at a disadvantage. This would also constitute religious discrimination. See the Q&A Is it religious discrimination for an employer to have a dress code which prohibits clothing often worn by employees of a certain religion? in our Religious discrimination Q&As.

Disadvantaged group

To establish indirect discrimination under the Equality Act 2010 a person must usually show that they were the member of a member of a disadvantaged group and that the relevant provision, criterion or practice disadvantaged them as an individual. However, there have been some EU case law developments which suggest that the claimant does not always have to belong to the protected group. For more information on this interpretation of indirect discrimination see the related Q&A Can a person who is not a member of the relevant specific racial or ethnic group still bring an indirect discrimination claim?.

Victimisation

Employees are protected from discrimination by way of victimisation. Victimisation is basicially defined as treating a person less favourably than another on the grounds that they have:

  • brought proceedings under the Equality Act 2010, or
  • given evidence or information in connection with such proceedings, or
  • done anything under or by reference to the Equality Act 2010 in relation to the discriminator or any person, or
  • alleged that the discriminator or any other person has committed an act which would amount to a contravention of the Equality Act 2010.

or, if the discriminator knows that the person victimised intends to do any of the above.

The Equality Act 2010 makes it clear there is no longer a need to use a comparator to measure the treatment of the ‘victim’ with another person who has not made or supported a complaint under the Act.

If an employee is in any way being treated differently because they supported a claim raised by a fellow employee, then this may well amount to victimisation. It is not necessary for the employee claiming victimisation in these circumstances to be a member of an ethnic minority etc themselves.

It will not matter whether the original underlying claim has been successful or not. In a complaint of victimisation, racial discrimination is not in issue; what is relevant is the conduct of the employer in consequence of the employee bringing a claim or assisting another to bring a claim.

It will be necessary to investigate the claim under the organisation's grievance procedure. If there is any supporting evidence it may be necessary to instigate further disciplinary proceedings against the discriminator.

Case law examples

The following examples help illustrate the legal meaning of victimisation. Although the cases were decided before the Equality Act 2010 came into force they remain good examples.

In Weathersfield Ltd t/a Van & Truck Rentals v Sargent [1999] IRLR 94 CA, a new employee resigned after being informed during her induction training of the company's policy not to provide service to black or Asian customers. This employee was not a member of an ethnic minority, nor was she a non-UK national. The employee raised the issue of victimisation as well as direct discrimination as she had been treated less favourably because she refused to carry out a discriminatory instruction. The Court of Appeal found that the employee's decision to resign was a direct consequence of being given this discriminatory instruction and therefore upheld her complaint of race discrimination.

In circumstances where a discriminatory instruction is given and the employee refuses to carry out that instruction, that employee may claim victimisation, that is that they have suffered less favourable treatment because of having refused to obey the discriminatory instruction.

In Oyarce v. Cheshire County Council (unreported, [2008] EWCA Civ 434, CA) an employee had previously brought a race discrimination claim against her employer which was subsequently withdrawn. A less qualified white colleague was then appointed to the post of temporary group leader and the claimant was not appointed. She brought a race discrimination and victimisation claim against the council.

Harassment

Harassment on racial grounds is a separate ground for a discrimination claim. Harassment is defined as where a person engages in unwanted conduct related to a relevant protected characteristic, for example on grounds of race, colour, ethnic or national origins (including citizenship) which has the purpose or effect of:

  • violating another other person's dignity, or
  • creating an intimidating, hostile, degrading, humiliating or offensive environment for another person.

Conduct shall be regarded as having this effect only if, having regard to all the circumstances including in particular the perception of that other person, it should reasonably be considered as having that effect. In deciding whether conduct has the intimidating, hostile etc effect the perception of the victim and the other circumstances of the case must be taken into account.

An employer is liable for any acts of unlawful discrimination carried out by its employees during the course of their employment unless the employer can show that it has taken such steps as were reasonably practicable to prevent those acts.

The Equality Act 2010 makes it clear that associative harrassment is sufficient to establish a claim. Under the Act it is also clear that employees can complain of behaviour that they find offensive, even if it is not directed at them. Complainants are therefore protected from harassment because of both perception and association.

See also the related Q&As Will an employer always be liable for race discrimination when it has failed to prevent racial harassment of one employee by other employees or by a third party? and What criminal legislation could a race discrimination claim be brought under?

Answer:

The burden of proof is the obligation on the employer or employee to establish the allegations in a case to the required degree of certainty. In discrimination claims there are two key stages:

  • The employee has to establish a prima facie case that is that there has been some discrimination by the employer.
  • The burden of proof then shifts to the employer who has to prove that there was an adequate explanation (other than discrimination) for what happened.

This is known as the reversal of the burden of proof. Historically there have been inconsistencies in the application of the burden of proof to different types of race discrimination. However under provisions in the Equality Act 2010 which came into force on 1 October 2010, in any claim where an employee alleges discrimination, harassment or victimisation, the burden of proving the case starts with them. Once the employee has established sufficient facts which point to a breach having occurred (in the absence of any other explanation), the burden then shifts onto the employer to show that it did not breach the provisions of the Act.

If an employee can only show a difference in status such as different racial origins and a difference in treatment this only indicates a possibility of discrimination. There has to be more than just those differences to conclude that the employer had committed an unlawful act of discrimination (see Madarassy v Nomura International Plc [2007] IRLR 246).

The case Birmingham City Council and Semlali v Millwood (unreported, UKEAT/0564/11 3 July 2012, EAT)is an example of what is needed to reverse the burden of proof where a difference in treatment has been shown. A black employee was treated less favourably than an Asian employee. Both had originally been teaching assistants, then family support workers, but the Asian employee was given a permanent contract and the black worker was not. The apparent reasons for the difference in treatment were that there were administration problems, that funding for family support workers was limited, that the Asian worker had asked for a permanent contract and had more relevant experience. The Employment Appeal Tribunal held that the explanations offered for the difference in treatment (all of which were not believed) could be taken into account to shift the burden of proof to the employer to prove why they acted as they did.

Answer:

The Racial and Religious Hatred Act 2006 came into force on 1 October 2007 and created a new offence of incitement to race or religious hatred. While this legislation is not employment related, it is a piece of criminal legislation which enables the police to arrest those who use threatening words or behaviour (or display similar written material) with an intent to stir up racial or religious hatred. It is possible that such behaviour in the workplace may lead to criminal offences being committed under the Act, in addition to breaching the existing race and religious discrimination provisions.

Also the Protection from Harassment Act 1997, although mainly concerned with protection from sexual harassment could be used in relation to incidents of racial or religious discrimination.

Answer:

Whether an employer can attempt to justify or defend a claim of race discrimination depends upon the precise nature of the claim being brought. It is very difficult to defend a claim for direct racial discrimination, although very rarely some employers may be able to show an 'occupational requirement'.

With indirect discrimination claims an employer may be able to justify their act of discrimination. With harassment and victimisation claims, the employer may be able to defend themselves by distancing the organisation from the acts of other employees.

For more information on justifying or defending discrimination claims see our Sex discrimination Q&As.

Answer:

An employer is liable for any acts of unlawful discrimination carried out by its employees during the course of their employment, unless the employer can show that it has taken such steps as were reasonably practicable to prevent those acts. Employers will therefore be vicariously liable where one employee harasses another. All employers must have an anti-discrimination policy (which may form part of an equal opportunities policy) which includes prohibition of employees harassing fellow employees. Indeed it is crucial to have such a policy as there has been conflicting case law decisions in this area.

The position with respect to harassment of an employee by third parties (such as clients and customers) has changed recently so employers may be uncertain to what extent they are liable if they fail to take reasonable steps to prevent repeated harassment of an employee.

To protect themselves employers should take discriminatory acts of any customers or clients seriously and be seen to implement proactive measures which make clients, customers or visitors aware of their obligations not to harass employees.

In addition to liability under the Equality Act 2010, there is another (non-discrimination) route by which employers can be made liable to pay huge damages for harassment of an employee by fellow employees. This was confirmed in Majrowski v Guy's & St Thomas's NHS Trust [2006 UKHL 34]. The House of Lords held that in some circumstances a bullied employee can win damages under Section Three of the Protection from Harassment Act 1997 and that this is a strict liability offence so the employee does not have to prove that the employer was negligent.

For more information on third party harassment see the Q&A Will an employer always be liable for sex discrimination when it has failed to prevent harassment on the grounds of sex or sexual harassment of one employee by a third party? in our Sex discrimination Q&As.

Answer:

With an increasingly diverse workforce, employers may find language issues arising and in fact there has already been an increase in language related claims in the employment tribunal.

On the one hand English is the language of business in the UK and is often the preferred language of communication in most workplaces, but on the other hand blanket rules, involving the use of a particular language, are unlikely to be justifiable.

As often with discrimination matters it is all about being reasonable. An employer can only require its employees to speak English if this is necessary for the satisfactory performance of the job and the employer can objectively justify the requirement. This means that an employer would have to show that the requirement to speak English was a proportionate means of achieving a legitimate aim.

Employers must therefore ensure that any requirements involving the use of a particular language during or outside working hours, for example during work breaks, do not amount to unlawful racial discrimination or harassment.

Employers cannot just impose arbitrary requirements to speak English at all times without looking at the needs of the business, precise roles involved and so on. They may be able to show that speaking English will would reduce misunderstandings, or be crucial in relation to health and safety. An employer may also feel that speaking the same language is conducive to good employee relations and promotes cohesion. However, when trying to justify a language policy employers should have considered whether there is any less discriminatory way of reducing disadvantages to a particular racial group. Matters the employer should consider may include:

  • the level of English which is actually required for the role (if any)
  • whether only basic words need to be spoken and understood in English to perform the role
  • the provision of interpreting facilities - other multi-lingual employees could assist with interpreting at meetings
  • multilanguage safety signs could be put in place, particularly for health and safety requirements,
  • workplace policies (such as policies on equality, bullying and harassment) which deal with exclusion issues and being respectful of others who do not share the same mother tongue may be appropriate.

A guide on race discrimination published by Acas includes a section on language which says that employers should avoid limiting the use of other languages unless they can justify this as a genuine business reason. An employer might be able to justify requiring English speaking if other employees feel excluded or bullied because they cannot join in. The guide recognises that an employer can:

  • Specify a language , usually English, for business reasons. An example of this would be in promoting effective communication so messages are consistently delivered and understood.
  • Insist a job candidate has skills in English necessary for the job, but not make assumptions about race nationality or ethnic or national origins.
  • Consider offering assistance to those whose English skills are limited. For example, an employer may wish to provide an interpreter at a disciplinary hearing.

The guide is available on the Acas website.

Case law

In Shah v George Grassic t/a The Suite Factory [1995] DCLD 24 a worker in a furniture factory who was dismissed for refusing to comply with an instruction to speak in English lost his race discrimination claim. The manager had instructed him to speak in English when talking to colleagues so that he knew what was being said. The tribunal stated that whether it is discriminatory to prohibit people from speaking in their native language depends on the circumstances. Instructing a worker not to speak in his mother tongue on any occasion at work would clearly be a discriminatory instruction. However in this case it was reasonable for the employer to expect to be spoken to in a way in which he could understand.

In Dziedziak v Future Electronics Limited (unreported, UKEAT/0270/11 28 February 2012, EAT) the Employment Appeal Tribunal (EAT) upheld a decision that it was an act of direct discrimination when the employer told a Polish employee not to use her own language. This could not be objectively justified as there is no defence to claims of direct discrimination.

In P F Franco v Fyffes Group Ltd (unreported, ET) a non-English (Portuguese) employee was unhappy that all other employees were not required to speak English all the time. He claimed that some of the line supervisors conducted some of their discussions in Polish and this amounted to the application of a provision, criterion or practice which put persons who shared the characteristic of not speaking Polish, including him, at a disadvantage. The tribunal found that the employer could objectively justify the provision to allow people who share a mother tongue to communicate in it because it is generally likely to lead to clearer communication and efficient management. No sensible employer would try to suggest that two Polish workers should not speak in Polish between themselves. However it is quite different when someone who does not speak that language is also party to the conversation. The employer in this case could show that management reminded Polish speakers to consider the needs of those without the language when they were around. As the work was a packing/sorting type role in a factory, it did not require excellent English skills.

In Jurga v Nuala and Neil Todd t/a Lavendale Montessori Nursery (unreported, 2012 ET) a British teacher originally from Poznan, Poland was banned from speaking any Polish at work even to colleagues when on her break. She said the parents of some children spoke to her in Polish and asked her to help their children by using the language when necessary. She successfully claimed race discrimination, harassment and victimisation against the school and was awarded £7,000 in compensation for injury to feelings.

In Kelly v Covance Laboratories Ltd (unreported, UKEAT/0186/15 20 October 2015, EAT) a Russian contract analyst was banned from speaking Russian at the laboratory where she worked which carried out animal testing. The line manager thought she could be another animal rights activist who had infiltrated the company as she was frequently speaking Russian at work on her mobile, including conversations from the staff toilets.

Because of her suspicious behaviour the line manager instructed her not to speak Russian at work to enable any conversation she had in the work place to be understood by English speaking managers.

The analyst lost her direct race discrimination and race harassment claim as the instruction to speak English was not because she was Russian, but because of the suspicions about her behaviour and the enhanced security requirements needed around animal testing. The EAT found that the employer would have given same instructions to any other comparator employee who was speaking a language other than English, in a situation where there was a cause for concern.

Answer:

The issue of whether an illegal worker can claim race discrimination is one aspect of the law on illegality. As a general rule, the courts and tribunals will not enforce an illegal contract. Employers should help prevent illegal working by making the appropriate checks while also avoiding race discrimination. For more information on this see the Q&A What are the penalties if employers recruit illegal workers? in our Recruitment and selection Q&As.

So what does happen where a worker is working illegally and has a discrimination claim to bring? The situation can arise in numerous situations, for example where there is no valid work permit and the employment is therefore unlawful.

Although courts and tribunals will not enforce an illegal contract there is a difference between:

  • contracts that are illegal when they are first formed, and
  • contracts that become illegal because of something that happens during the duration of the contract.


The courts and tribunals are also reluctant to allow an employer to discriminate against an employee and then avoid responsibility for their discriminatory conduct by hiding behind an illegal contract.

Case law

In Colen and another v Cebrian UK Ltd (unreported, [2003] EWCA Civ 1676 20 November 2003, CA) a husband and wife worked for the same employer and claimed commission owing from before their dismissal. The husband had being evading tax by transferring commission which he had earned to his wife instead. The employer argued that the whole contract was contaminated by this illegal tax evasion and that the legal system could not be used to enforce an illegal contract.

The Court of Appeal said that at the date of the contract it was perfectly lawful but the effect of the later illegal performance did not automatically make the contract unenforceable. Therefore it upheld the contract. So illegality as to performance does not always make the contract unenforceable.

A more recent example is Hounga v Allen (unreported, [2014] UKSC 47, 30 July 2014, SC) in which a Nigerian au pair had no valid work permit and both she and her employers knew that this employment was unlawful. She was subjected to serious physical abuse and threats about what would happen to her if she ran away. Eventually she was dismissed and claimed race discrimination, unfair dismissal, breach of contract, unlawful deductions of wages and holiday pay. Her claims were all rejected by the employment tribunal as she had no lawful contract of employment and the courts will not enforce an illegal contract. However the race discrimination claim reached the Supreme Court which held that even though the au pair was an illegal immigrant she was entitled to bring a claim of race discrimination. There was not a sufficiently close connection between her illegal immigration and the unlawful discrimination which would prevent her claim. Although there was an illegal contract, this was not connected to the discrimination but was just the context in which the wrong (i.e. the discrimination) occurred. The au pair did not obtain compensation for loss of earnings, as those earnings were illegal, but she did obtain a finding of discrimination and an award for injury to feelings.

Employees will therefore be barred from discrimination claims only if there is a sufficiently close connection between the illegality and the facts giving rise to the claim. Illegal workers have a right not to be subjected to unlawful race discrimination.

For more information on illegal contracts see the Q&A What are illegal contracts in an employment law context and are they enforceable? in our Terms and conditions of employment Q&As.

Answer:

Yes it appears a person who is not a member of the relevant specific racial or ethnic group may still be able to bring an indirect race discrimination claim. This is based on EU case law, including a recent Bulgarian caseCHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsias (unreported, C‑83/14 16 July 2015, ECJ).

The basic position with most direct and indirect race discrimination claims is that the person who has been discriminated against believes that they have been treated less favourably in some way because of their protected characteristic of ‘race’ which may include colour, nationality (including citizenship), ethnic origins and national origins. However what happens where the treatment they receive is because of someone else’s race?

It has been known for some time, since the ECJ ruling in Coleman v Attridge Law [2008] IRLR 722), that 'associative discrimination' was covered by EU law. This meant that, for example, a mother of a disabled child could claim direct discrimination on grounds of her child’s disability even though she is able bodied. Associative discrimination is now a part of the Equality Act 2010.

However, it is not clear if indirect discrimination claims can proceed, irrespective of the protected characteristic of the person suffering the particular disadvantage. The issue has arisen that other people have been disadvantaged by a practice directed at a protected racial group.

Two examples are:

  • An employer has a provision, criterion or practice that employees must stay late on a Friday. This is indirectly discriminatory against Jewish employees. Other employees disadvantaged by Friday night working because they want to go out to a nightclub or something similar, could potentially pursue an indirect religious discrimination claim based on the case referred to below.
  • An employer has a provision, criterion or practice that job sharing is not allowed and rejects a male employee’s request to job share for childcare reasons. Normally there would be no indirect claim. This is because statistically women have a greater role than men in childcare and therefore women are the disadvantaged group for indirect discrimination purposes. However, a male employee detrimentally affected by the policy against job sharing could possibly pursue a claim if EU law is followed.

Caselaw

A recent case Home Office (UK Border Agency) v Essop and others (unreported, [2015] EWCA Civ 609 22 June 2015, CA) illustrates that the claimant must normally be part of a protected group. Home Office staff alleged that the requirement to pass a test in order to achieve promotion was indirectly discriminatory. The statistics showed that BME candidates and those who are older than 35 were less likely to pass the assessment than non-BME and younger candidates. There was no particular factor specific to any individual claimant that explained their failure.

The Court of Appeal (CA) held that the claimants had to show that they were part of a group that had a proportionately lower pass rate and they must show the reason why they individually failed the test. The CA also said that it is conceptually impossible to prove a group disadvantage without also showing why the claimed disadvantage is said to arise. Group disadvantage cannot be proved in the abstract. This case may be interpreted differently following CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsias.

The Bulgarian case which although it concerned the supply of services rather than employment, has implications for indirect discrimination claims.

An electricity supplier had placed electricity metres at an inaccessible height of six metres in a particular district of a Bulgarian town. There had been cases of tampering with meters and unlawful connections to the electricity network which triggered the decision to raise their height. The area was populated mainly by people of Roma ethnic origin. If the meters were placed at the normal height of 1.7 metres they were tampered with.

A woman of non-Roma origin who ran a shop in the 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 as her Roma neighbours.

The Advocate General and the European Court of Justice (ECJ) both decided that the indirect discrimination provisions of the EU Race Discrimination Directive apply, irrespective of the racial or ethnic origin of the person suffering the particular disadvantage. People who are not members of the racial or ethnic group concerned can still bring an indirect claim if they suffer the particular disadvantage.

Indirect discrimination is an apparently neutral provision, criterion or practice which puts persons of a racial or ethnic origin at a particular disadvantage compared with other persons (unless the provision is objectively justified by a legitimate aim). There is nothing stating that a victim of indirect discrimination must share the race or ethnic origin of the protected group.

Although the case was concerned with the Race Discrimination Directive it is very likely that the ECJ’s ruling will apply in relation to other protected characteristics.

Under UK law, namely the Equality Act 2010, an indirect discrimination claim is currently expressed to arise only if the claimant has the same characteristic as the protected group. The ECJ’s judgment seems to suggest that individuals who suffer collateral damage alongside a disadvantaged group (without sharing the relevant protected characteristic) should still be protected within the scope of indirect discrimination.

What should employers do?

Employment Tribunals must interpret UK statutory provisions consistently with any underlying EU directive, so Equality Act 2010 claims based on this case could effectively remove the requirement for claimant to have a relevant protected characteristic.

Employers should scrutinise any provision, criterion or practice that may disadvantage of employees with a particular characteristic because a challenge could come from anyone who doesn’t like the provision, not just those possessing that characteristic. Employers should avoid provisions, criterion or practices which disadvantage any group and consider whether they can be objectively justified.

Employers should note that in relation to direct discrimination it is already established law that claimants do not need to share the characteristic in question. For example in Weatherfield Limited t/a Van & Truck Rentals v Sargent [1999] IRLR 94 CA the Court of Appeal found that a white European employee was discriminated against on racial grounds when she resigned in response to being told to discriminate against prospective customers of black and Asian origin by pretending that there were no hire vehicles available for them. Although this case, which was decided under the legislation that predates the Equality Act 2010, it shows that for direct discrimination claims the treatment need not be related to the claimant’s own race.

Answer:

There are a number of future developments affecting race discrimination which are discussed under the following headings:

Caste discrimination

A major future development expected in the area of race discrimination relates to caste discrimination which is not currently specifically covered in the UK. A power was inserted into the Equality Act 2010 (in the amended section 9) to enable the government to make caste discrimination illegal by way of new regulations.

The current definition of race in Section 9 of the Equality Act 2010 therefore only refers to colour, nationality and ethnic or national origins. In Naveed v Aslam and another t/a Chilli Pink (unreported, ET/1603968/2011 11 September 2012, ET) the employment tribunal confirmed that it could not interpret the Act to cover caste discrimination when the claimant and alleged perpetrators were different levels of the same caste.

By contrast in Chandok and another v Tirkey (unreported, UKEAT/0190/14 19 December 2014, EAT) the Employment Appeal Tribunal (EAT) has indicated that despite there being no universally agreed definition of caste, the concept involves elements that may fall within the concept of ethnic origins. The claimant was in domestic service. She described herself as from the Adivasi people, who some in India consider 'low caste'. Whilst working for the defendants she alleged that she was on call 24 hours a day, had to sleep on the floor and was prevented from contacting her family or operating her own bank account. She also earned just 11p per hour and eventually left and brought various claims in the employment tribunal, including caste discrimination.

The Employment Appeal Tribunal (EAT) decided that caste discrimination claims could be pursued under the Equality Act 2010 as an aspect of ethnicity. The employment tribunal then considered the matter and awarded the claimant £183,774 for unpaid wages, as she was not paid the national minimum wage with a further remedy hearing due in November 2015 to decide on compensation for her caste discrimination claim which will presumably include a high injury to feelings element.

This higher level ruling however did not finally resolve the issue because the EAT held that although caste as an separate concept does not fall within the Equality Act 2010, caste discrimination may still be unlawful.

It is best explained by saying it gives support to the argument that caste is already protected under the general concept of race (which includes ethnic group).

There are numerous problems in relying on the Tirkey case, as although it opens the possibility of claims of caste discrimination under existing legislation, it is not binding in all circumstances. The Equality Act 2010 gave Ministers the power to add caste as a specific aspect of race. In April 2013 after a debate in parliament the government appeared to agree to amend the Act to outlaw caste discrimination under the Enterprise and Regulatory Reform Act 2013. In July 2013 the Department for Culture, Media and Sport indicated that the consultation would be a long one and published a timetable setting out the consultation process.

More information, including a programme and timetable, is available on the GOV.UK website.

However, the time table has slipped and no legislation has been implemented so far. Until it is employers should continue to avoid discrimination on the grounds of caste and assume that on the basis of the EAT decision any caste discrimination may fall under the umbrella of race discrimination based on ethnic origins.

In December 2014 the House of Commons published a note which provides an overview of the concept of caste, explains the relevant law and sets out the background to the order-making power in the Equality Act 2010. The note is available on the Parliament website.

On 7 September 2016 the government announced that a full consultation will be launched on the issue of caste discrimination and the Equality Act 2010.

A key aim of the consultation will be to obtain the views of the public on whether additional measures are needed to ensure victims of caste discrimination have appropriate legal protection and effective remedies under the Act. Details of the consultation and timings will be announced.

Caselaw

Although the overall numbers of tribunal cases have fallen as a combined result of the introduction of significant fees and Acas early conciliation, interesting cases will continue to emerge providing clarification on the application of the Equality Act 2010. The Government has also increased the qualifying period to unfair dismissal claims from one year to two years. This means that lawyers advising dismissed employees who do not qualify for unfair dismissal claims, will try even harder to find other reasons for the employee’s dismissal. Discrimination claims which do not have a qualifying period are the obvious avenue to explore.

Brexit

In a referendum on 23 June 2016 the UK voted to leave the EU. For information on what Brexit will possibly mean for employment law read the blog by our Public Policy Advisor (Employer Relations).

We have also set up a resource hub on our website where relevant resources and details of our ‘Brexit’ activities will be published.

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