Explore the UK legal position and main issues employers face when dealing with race discrimination in the workplace
The key legislation covering race discrimination from 1 October 2010 onwards is the Equality Act 2010. For cases arising before 1 October 2010, the relevant legislation was the Race Relations Act 1976 and the numerous statutory instruments which amended and supported that Act.
European legislation that has helped frame the UK's approach to race discrimination protection includes the EU Race Directive (2000/43/EC) and EU Equal Treatment Framework Directive (2000/78/EC) .
Other legislation which may apply to race discrimination claims includes:
- Racial and Religious Hatred Act 2006
- Protection from Harassment Act 1997
- Modern Slavery Act 2015.
The Racial and Religious Hatred Act 2006, which came into force on 1 October 2007, 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.
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.
There is a detailed Code of practice on employment and other non-statutory guidance available on the Equality and Human Rights Commission website.
Who does the race discrimination legislation cover?
The relevant provisions of the Equality Act 2010 set out a number of protected characteristics, split into several categories. The Act confirms that the protected characteristic governing ‘race’ includes the following:
- nationality (including citizenship)
- ethnic origins
- national origins.
Case law examples of nationalities/ethnicities covered by the Race Relations Act 1976 (RRA) and which are likely to fall within the Equality Act 2010 provisions include individuals who are English, Jewish, Sikh, Romany and Scottish.
Note that in some cases, there may be an overlap with religious discrimination, and 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.
Cases under the old law have concerned the meaning of ‘racial grounds’ or a ‘racial group’. These examples remain useful under the Equality Act 2010.
In Serco Ltd v Redfearn (2006) an employee belonging to a racist group (namely the BNP) claimed he had been discriminated against on racial grounds. This seems 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 (2008) the employer argued that its former employee could not claim under the RRA, 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 issue are anticipated.
In R(E) v The Governing Body of JFS (2009), the Court of Appeal, and later the Supreme Court, 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 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 have been the subject of a lengthy consultation process. (For more information see 'Future developments' below)
How much compensation will an employer have to pay an employee who succeeds in a race discrimination claim?
As in all cases of discrimination, the most crucial aspect to remember about race discrimination is that compensation 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.
Discrimination cases where the complainant was on a significant remuneration package or suffers considerable loss of earnings can attract high levels of awards. D'Souza v London Borough of Lambeth (1997) is an extreme example of race discrimination compensation in excess of the average awards. The total award from the EAT 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.
In Ministry of Defence v DeBique (2010) a soldier from the Caribbean who was 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 had childcare facilities.
In April 2010 an employment tribunal awarded her just over £17,000, including interest. This award was for injury to feelings, but there was no 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 (2011) a Polish doctor working as a consultant for an NHS Trust went on maternity leave a year or so after her appointment. 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. 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.
It is worth noting that a number of 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 (2011) 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 him. An employment tribunal found 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.
Can an employee bring a claim of race discrimination post-employment?
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.
The Equality Act 2010 makes it clear that post-employment discrimination, such as in references, is covered.
For more information on discrimination claims relating to references and any victimisation claims arising see our References Q&As.
What types of race discrimination are covered under the Equality Act 2010?
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). Direct discrimination on racial grounds occurs when a person is treated less favourably than someone else because of their colour, race, nationality or ethnic or national origins (including citizenship).
Claimants 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 racial discrimination is the application of a provision, criterion or practice (PCP) 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 it applies to that individual a PCP 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
- puts or would put that individual at a disadvantage
- cannot be shown 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 (2011)).
- 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 our Religious discrimination Q&As).
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.
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
- given evidence or information in connection with such proceedings
- done anything under or by reference to the Equality Act 2010 in relation to the discriminator or any person
- alleged that the discriminator or any other person has committed an act which would amount to a contravention of the Equality Act 2010.
Victimisation may also occur 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 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.
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 circumstances where an employee refuses to carry out a discriminatory instruction, that employee may claim victimisation if they have suffered less favourable treatment because of it.
In Weathersfield Ltd v Sargent (1999), 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 Oyarce v Cheshire County Council (2008) 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 was able to bring a race discrimination and victimisation claim against the council.
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.
In deciding whether conduct has the intimidating, hostile etc effect complained of, 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.
How does the burden of proof apply in race discrimination cases?
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 which has to prove that there was an adequate explanation (other than discrimination) for what happened.
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.
The case Birmingham City Council and Semlali v Millwood (2012)is an example of what happens 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.
Can an employer justify race discrimination?
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.
Will an employer be liable for racial harassment between employees or by a third party?
An employer is liable for any acts of unlawful discrimination carried out by its employees during the course of their employment, unless it 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 should have an anti-discrimination policy (which may form part of an equal opportunities policy) which prohibits employees harassing their colleagues. Indeed it is crucial to have such a policy as there has been conflicting case law decisions in this area.
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. In Majrowski v Guy's and St Thomas's NHS Trust (2006). The House of Lords held that in some circumstances a bullied employee can win damages under the Protection from Harassment Act 1997. The employee does not have to prove that the employer was negligent.
For more information on third party harassment see our Sex discrimination Q&As.
Can an employer insist on employees speaking English at work?
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.
Although English is the language of business in the UK and is often the preferred language in most workplaces, blanket rules involving the use of a particular language are unlikely to be justifiable.
Avoiding discrimination, as with many employment matters, 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 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 actually required for the role (if any)
- whether only basic English words are necessary to perform the role
- the provision of interpreting facilities (multilingual employees could assist with interpreting at meetings)
- the use of multilingual health and safety signs
- workplace policies (such as those on equality, bullying and harassment) which deal with exclusion issues and being respectful of others, could also deal with multilingual issues.
An Acas guide on race discrimination 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. The guide recognises that an employer can:
- Specify a language, usually English, for business reasons (such as promoting effective communication, so messages are consistently delivered and understood).
- Insist a job candidate has skills in English necessary for the job (while not making assumptions about race, nationality or ethnic 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.
In Dziedziak v Future Electronics Ltd (2012,) the Employment Appeal Tribunal (EAT) held 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 Franco v Fyffes Group Ltd (2012) a Portuguese employee was unhappy that all other employees were not required to speak English all the time. He claimed that some line supervisors conducted some of their discussions in Polish which put those 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 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 Todd t/a Lavendale Montessori Nursery (2012) a British teacher originally from Poland was banned from speaking 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 (2015) 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 an 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.
The line manager instructed her not to speak Russian at work so any conversation she had in the work place could 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 the same instructions to any other employee who was speaking a language other than English, in a situation where there was a cause for concern.
Can someone working illegally bring a race discrimination claim?
This situation can arise in numerous situations, for example, where there is no valid work permit and the employment is therefore unlawful. Employers should help prevent illegal working by making the appropriate checks while also avoiding race discrimination (for more information, see our Recruitment and selection Q&As.)
As as general rule, the courts and tribunals will not enforce an illegal contract, but 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 reluctant to allow an employer to discriminate against an employee and then avoid responsibility for their discriminatory conduct by hiding behind an illegal contract.
Illegality in the performance of a contract does not always make it unenforceable.
Employees will be barred from discrimination claims only if there is a sufficiently close connection between the illegality and the facts giving rise to the discrimination claim. Illegal workers have a right not to be subjected to unlawful race discrimination.
In Colen v Cebrian UK Ltd (2003) 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 it was formed, the contract was perfectly lawful, but the effect of the later illegal performance did not automatically make it unenforceable. Therefore it upheld the contract.
A more recent example is Hounga v Allen (2014) 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. 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 she was an illegal immigrant she was entitled to race discrimination protection. Although there was an illegal contract, this was not connected to the discrimination but was just the context in which the wrongdoing (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.
For more information on illegal contracts, see our Terms and conditions of employment Q&As.
What is discrimination by association?
In most direct and indirect race discrimination claims, ithe person bringing the discrimination claim believes they have been treated less favourably because of their race, which may include colour, nationality (including citizenship), ethnic and national origins. But what happens where the treatment they receive is because of someone else’s race?
Since the ECJ ruling in Coleman v Attridge Law (2008), 'associative discrimination' has been 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. This issue has arisen that other people have been disadvantaged by a practice directed at a protected racial group.
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.
The case Home Office (UK Border Agency) v Essop (2015) 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 BAME candidates and those older than 35 were less likely to pass the assessment than non-BAME 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 a recent Bulgarian case, CHEZ Razpredelenie Bulgaria AD v Komisia (2015) which, although it concerned the supply of services rather than employment, has implications for indirect discrimination claims.
An electricity supplier had placed electricity meters 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. 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 European Court of Justice (ECJ) decided that the indirect discrimination provisions of the EU Race Discrimination Directive applies, irrespective of the racial or ethnic origin of the person suffering the particular disadvantage. So people who are not members of the racial or ethnic group concerned can still bring an indirect claim if they suffer the particular disadvantage.
Although the case was concerned with the Race Discrimination Directive it is likely that the ECJ’s ruling will apply in relation to other protected characteristics.
Under the UK's Equality Act 2010, an indirect discrimination claim currently arises 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.
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 Ltd v Sargent (1999), 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 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.
Caste discrimination is not currently specifically covered in the UK although the Equality Act 2010 (section 9) enables the government to make caste discrimination illegal by way of new regulations.
The current definition of race in the Act therefore only refers to colour, nationality, and ethnic or national origins. In Naveed v Aslam (2012) the employment tribunal confirmed that it could not interpret the Act to cover caste discrimination when the claimant and alleged perpetrators were at different levels of the same caste.
By contrast in Chandok v Tirkey (2014) 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, thus supporting 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, and there have been discussions on whether and how this should happen. The most recent government consultation closed on 18 September 2017.Unless and until there is new legislation, 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.
Cases will continue to emerge providing clarification on the application of the Equality Act 2010. The qualifying period for unfair dismissal claims is two years. This means that lawyers advising dismissed employees who do not qualify for unfair dismissal protection, will try hard to find other reasons for the employee’s dismissal. Discrimination claims which do not have a qualifying period are the obvious avenue to explore.
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