- ‘Race’ is defined as including colour, nationality, ethnic or national origins, or being a person of a particular racial group.
- Direct discrimination occurs where a person is treated, or would be treated, less favourably ‘because of’ race compared with others in like-for-like circumstances.
- Indirect race discrimination occurs when a provision, criterion or practice (PCP) puts an individual of a particular race at a particular disadvantage compared with people of a different race. An employer may be able to justify the PCP as a proportionate means of achieving a legitimate aim.
- An occupational requirement, where the nature or context of the work require a person to be of a particular race, can be a lawful exception to direct and indirect discrimination.
- Harassment occurs where unwanted conduct related to race violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.
- Victimisation occurs where a person is subjected to a detriment for carrying out a ‘protected act’ (for example, bringing a discrimination claim).
- Employers are liable for acts of discrimination, harassment and victimisation carried out by their employees ‘in the course of employment’.
- colour includes being black or white, or any other skin colour
- nationality includes being a British, Australian or Swiss citizen
- ethnic origin includes belonging to a particular caste or being Roma
- national origin includes being of Chinese, Polish or Indonesian heritage
- a racial group could be ‘black Britons’ which would encompass those people who are both black and who are British citizens.
- the actual race of the complainant
- a perception of an individual’s race, whether that perception is correct or not (for example, an employee is perceived to be Spanish, but in fact is Portuguese)
- by association with someone who has the protected characteristic (for example, a British employee’s colleagues tease her about her husband, who is French)
- because of personal conviction (for example, an employee is dismissed because he will not carry out an employer’s instruction that he must refuse to interview black applicants)
- because the complainant is treated as if they have a protected characteristic, even though it is known that he or she does not (for example, a male colleague who is known not to be German, but who spent his childhood in Germany, is constantly referred to as ‘Adolf’, ‘Fritz’ and ‘Jerry-boy’).
- puts, or would put, a group of people of one race at a particular disadvantage compared to others of a different race in circumstances where there is no material difference in each case
- puts, or would put, an individual employee at a disadvantage
- cannot be shown to be a proportionate means of achieving a legitimate aim.
- actually contribute to the pursuit of the legitimate aim
- be within the limits of what is absolutely necessary to achieve the business aim and there is no other less discriminatory way to achieve it
- deliver benefits to the business which far outweigh the discriminatory effect on the individual.
Under the ‘general occupational requirements’ provisions in the Equality Act 2010 an exception to the direct and indirect discrimination rules applies where an employer can show that because of the nature or context of the work, being of a particular race is a requirement for the person performing it. The requirement must be a proportionate means of achieving a legitimate aim, in a situation where the person to whom the occupational requirement applies does not meet it, or the employer has reasonable grounds for not being satisfied that the person meets it. To satisfy the exception, the requirement must be crucial to the post, and not merely one of several important factors. It also must not be a sham or pretext.
- violating that person’s dignity, or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her.
- bringing proceedings under the Equality Act 2010 (for example, lodging a tribunal claim)
- giving evidence or information in connection with proceedings under the Act (for example, the complainant or a witness giving evidence at a tribunal)
- doing any other thing for the purposes of, or in connection with, the Act (for example, reporting alleged discriminatory behaviour to the Equality and Human Rights Commission)
- making an allegation about a contravention of the Act (for example, raising a grievance or a complaint about an alleged discriminatory act by the employer or a colleague).
If there are facts from which a tribunal could decide that an employer has committed an unlawful act, then the tribunal must hold (in the absence of any other explanation) that a contravention of the Equality Act 2010 has occurred, unless the employer can show it did not contravene the provision in question. In practice this means the claimant initially has to produce evidence which demonstrates to a high degree of probability that discrimination has occurred. If the claimant establishes a case which at first sight indicates that discrimination could have occurred, then the ‘burden of proof’ switches to the employer, which then has to show a non-discriminatory reason for its actions.
- financial loss, which includes any loss of earnings or benefits, up to the date of the tribunal hearing and any potential loss for the future.
- injury to feelings, which compensates for the degree of hurt, insult and humiliation experienced by a claimant and is awarded within one of three bands. For claims presented on or after 6 April 2023, the following bands apply (for historic rates see our ‘Statutory rates’ page):
- Very serious cases, such as where there has been a lengthy campaign of discriminatory harassment, can receive compensation of between £33,700 and £56,200.
- There is a middle band of between £11,200 and £33,700 for serious cases which do not merit an award in the highest band; and
- A band between £1,100and £11,200 for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence.
- Only in exceptional cases will injury to feelings awards exceed £56,200.
- personal injury damages, where there is a link between the act of discrimination and an injury suffered (for example, psychiatric illness such as clinical depression).
- aggravated damages, which compensates claimants for whom the degree of injury to feelings has been heightened because a tribunal has found that the employer behaved in a high-handed, malicious, insulting or oppressive manner (for example, encouraging harassment or deliberately trying to discredit an employee’s name).
The Government is considering how specifically to ensure protection against caste discrimination via the Equality Act 2010. A consultation closed on 18 September 2017, asking for views on whether specific legislation is required or current case law principles are sufficient to provide ongoing protection.
The Government has responded to its consultation on caste discrimination. The consultation asked stakeholders whether 'caste' should be specifically added to the Equality Act 2010 as an aspect of race in order to provide protection against discrimination, or whether existing case law should be relied upon.
The Government has chosen to take a light touch approach and has confirmed it will afford protection by relying on existing case law, most notably the case of Tirkey v Chandok which you can read more on in our Case Law section. No amendments will therefore be made to the Equality Act 2010.
The movement Halo Collective, who are dedicated to tackling race-based discrimination, have produced the Halo Code, specifically designed to tackle hair-based discrimination. This follows research from the group, which found that one in five black women are pressured to straighten their hair.
The Halo Code provides best practice guidance for avoiding this, which is voluntary for organisations to sign up to. Those who do sign up to the code pledge to do the following:
- champion the rights of staff to embrace Afro-hairstles and textured hair
- acknowledge that Afro-textured hair is an important part of racial, ethnic, cultural and religious identity
- celebrate the right for employees to wear their hair in all styles
- recognise that hair texture and style have no bearing on an employee’s ability to succeed.
Section 14 of the Equality Act, 2010, if implemented, would allow for a 'combined discrimination' claim to be brought. This would mean that 'dual characteristics' could be the basis of a claim, and would have the result of a further 21 combined protected characteristics.
In April 2011, the government made it clear that this provision would not be moved forward.
A Minister for Work and Pensions, Baroness Stedman-Scott, confirmed in a letter written in May 2022 to Caroline Nokes (MP), the Chair of the Women and Equalities Commission that this section of the Equality Act would not become law. This letter made it clear that to enact section 14 would result in 'unwelcome regulatory complexity' placing costly burdens on employers.
A policy paper entitled 'Menopause and the Workplace: How to enable fulfilling working lives: government response', published on 18 July 2022, further explained why it would not be going forward with the recommendation that section 14 of the Equality Act 2010 be enacted to allow intersectional, multiple, discrimination claims to be recognised. It stated as follows:
"As with other employment issues, a framework of legislative protection is an important backdrop that should act to ensure employers adopt best practices. This can help to prevent problems arising in the first place and help employers to work with employees to solve issues where they arise.
Menopause is not a protected characteristic in the Equality Act 2010 (the Act), but sex, age and disability are all characteristics which provide protection against unfair treatment of employees going through the menopause. As such, the Government does not believe further changes to the Equality Act are needed.
This is borne out by recent cases which show that employees have scope within the Act to challenge discriminatory treatment by employers - claiming under one or more of the three relevant characteristics."
We have a very multi-national workforce in our factory. In particular, we have a significant number of Polish employees. The Factory Manager has now imposed a rule that the Polish employees must speak English during working time. Is this allowed?
We employ a considerable number of foreign nationals, mostly from eastern Europe. We have, in some cases, had cause for concern over individuals’ ability to speak English to a satisfactory level. When recruiting in future, can we insist that candidates speak fluent English?
You can legitimately require candidates to speak English to a level that enables them to do their jobs effectively, for example, to understand instructions or communicate effectively with customers. However, imposing an unjustified requirement that job applicants must speak English fluently (as opposed to some lower standard of spoken English) would amount to indirect race discrimination against applicants of foreign nationality whose first language is not English. You should ensure therefore that you carefully consider the level of English language ability that is objectively necessary for performance of each job when recruiting and avoid applying too high a standard.