In this week’s article we consider the protected characteristic of “race”. Under the Equality Act 2017 it is unlawful to discriminate against, harass or victimise an employee (this also extends to a prospective employee, a worker and anyone contracted to perform work personally) because of their race or because of the race of someone they are connected with.
- Colour – there is no statutory definition as it is considered “self-explanatory” by reference to a person’s skin colour (hair colour is not covered);
- Nationality – a person’s nationality or citizenship, ie British. This can change and someone’s nationality may not be the same as where they were born;
- Ethnic origin – an ethnic group of people with a shared history and culture, ie Jewish people, Irish Travellers and Sikhs. Muslims and Rastafarians do not count as ethnicities, however, people from these groups may be covered under the protected characteristic of religion or belief;
- National origin – usually refers to where someone was born or where their parents are from, ie a person could have Chinese national origin and British nationality; and
- Caste – this refers to a system of social hierarchy typically associated with South Asia, particularly India and its diaspora. It can dictate a person’s job and social status, leading to either positive or negative treatment by virtue, solely, of where a person is deemed to fit within that value system.
It is worth noting that the statutory definition of “race” is non-exhaustive, meaning that factors other than those listed might arguably be covered. A person may fall into more than one racial group, for example British Asians.
Direct race discrimination can take one of three forms: (i) ordinary direct discrimination where an employee is treated less favourably because of their own race; (ii) direct discrimination by association where the less favourable treatment occurs because of the race of someone they are associated with, ie a partner or parent; or (iii) direct discrimination by perception where the less favourable treatment occurs because a person is thought to have a certain race, when in fact they don’t.
Indirect discrimination occurs when a working practice, policy or rule is applied equally to all employees but puts a specific employee or group of employees at a disadvantage because of their race. For example, an employer needs to reduce the number of employees and uses English language skills as one of the redundancy selection criteria. This could put people whose first language is not English at a disadvantage.
Indirect discrimination may be “objectively justified” if the employer can show that the practice, policy or rule is necessary for the way the business operates and it is proportionate.
Harassment may occur when someone experiences unwanted behaviour related to race which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment – for example, the use of racist language. It is also possible for an employee to assert a complaint of harassment even when they are not directly on the receiving end of the conduct, but witnessing it negatively impacts on their dignity at work or working environment, ie an employee telling jokes about Asian people that colleagues (regardless of their race) find offensive.
Racial harassment can also amount to a criminal offence if the incident involves physical or verbal abuse, threats of physical violence, online abuse or damage to the person’s property. In such circumstances, employers will need to consider their duty of care to employees with regard to reporting the crime and, potentially, put in place support for the victim of such offence(s).
Victimisation occurs when someone is treated less favourably as a result of being involved with a discrimination or harassment complaint, irrespective of whether the complaint was made by the employee or someone else. For example, an employee providing a statement in support of a complaint relating to racist comments made by a manager to a colleague and then receiving aggressive emails from the manager about the statement (or generally being treated worse at work, eg being denied a promotion or bullying via exclusion etc).
What if it’s not obvious?
It is not always obvious that someone is being treated less favourably because of their race, particularly in situations involving microaggression (consisting of subtle or indirect references to the protected characteristic) or where this arises from unconscious bias, ie commending a job applicant on how good their English is, when in fact English is their first language. Furthermore, a person doesn’t have to show a regular pattern of behaviour, it could be a one-off incident. Besides this, it doesn’t have to be intentional or deliberate to be challenged as unlawful discrimination/harassment.
Vicarious liability for employers – “it’s just banter!”
An employer is not only liable for its own discriminatory acts but it can be vicariously liable for the acts of its employees. A common example is where an employee engages in “banter” with racist undertones which takes place in the ‘course of employment’ (this can be interpreted quite widely). An employer can find itself vicariously liable for the actions of the offending employee unless it can show that it took ‘all reasonable steps’ to prevent that employee from engaging in the behaviour, such as providing appropriate training and having robust procedures.
Can race discrimination ever be lawful?
There are limited circumstances in which it can be lawful to discriminate on the basis of race, such as:
- Positive action – where an employer takes positive action in situations where people who share a particular protected characteristic suffer a disadvantage connected to that characteristic, have particular needs, or are disproportionately underrepresented (the employer cannot actually discriminate as this would be unlawful but can take steps to remove hurdles related to the protected characteristic).
- Occupational requirement – where belonging to a certain race is essential for the job. For example, a hostel for Indian woman who have suffered violence. The hostel may be able to insist they only want Indian women workers because the women in the hostel will find it easier to relate to staff and feel secure.
Tips for employers to reduce the risk of a race discrimination claim
Implement clear policies and procedures to help identify and respond to any issues that may arise, including equal opportunities, whistleblowing, anti-harassment and bullying and disciplinary policies.
Practice what you preach and lead from the top – set expectations as to what is and isn’t acceptable behaviour. Provide training and ensure this is kept up to date. As noted above, racism is not always obvious and so training should include reference to unconscious bias and microaggression.
The next article in our series will consider the protected characteristic of sex.
If you have any questions regarding race discrimination (or any other equality topic), please do not hesitate to get in touch with our Employment Team.
How can we help?
Cains is able to provide clear, considered and tailored legal advice and administrative support necessary for ensuring that all of your needs are managed and executed in an efficient and timely manner.
The guidance in this note is for information purposes only and is not intended to be exhaustive. It is not intended to constitute legal or other professional advice, and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances. Cains only advises on the laws of the Isle of Man and accepts no responsibility for any errors, omissions or misleading statements or for any loss which may arise from reliance on the information in this note.