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Javaid, Makbool - Simons Muirhead and Burton
Overview
The Equality Act 2010 provides protection against unlawful direct and indirect discrimination, harassment and victimisation for the protected characteristic of 'race'.

Key points

  • ‘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’.

Recent developments

New Code established to tackle hair-based discrimination

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.
Caste discrimination - Government response

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.

Race discrimination in light of the 2020 coronavirus outbreak

In light of the outbreak, many staff from China or other affected areas may be subjected to bullying as a result. It is important to remind staff that any form of discrimination in the workplace, regardless of the reason, will not be tolerated. Employees who are being subjected to this form of treatment should be advised to come forward and all complaints should be investigated and responded to in line with company policy. 

The Equality Act 2010 provides protection against unlawful direct and indirect discrimination, harassment and victimisation for the protected characteristic of race.
‘Race’ is defined as including colour, nationality, ethnic or national origins, or being a person of a particular racial group.
 
Examples of race:
  • 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.
Under Section 9(5) of the Act, the government must amend the definition of race to include ‘caste’ as an aspect of race. To date, no amendment has been made, but the EAT has ruled that ‘caste’ can fall within the scope of ‘ethnic origin’ (see Tirkey v Chandhok).
Direct race discrimination occurs where a person is treated, or would be treated, less favourably ‘because of’ race compared with others in like-for-like circumstances. Direct discrimination can never be justified, no matter how well-intentioned the motive.
 
Example: Although a Polish applicant is the best candidate for a job, he is not offered the position purely because he is Polish, as the employer fears he would constantly be subjected to harassment or hostile treatment by a number of members of the workforce who have expressed negative views about Polish people “coming over here and taking our jobs or living off of our benefit system”. This would constitute direct discrimination if the Polish person can show that a non-Polish applicant, actual or hypothetical, and who had, or would have had, the same attributes as him, was treated more favourably in an identical recruitment process.
 
The term ‘because of’ race has a wide interpretation in law as it makes no reference to the race of any particular individual. Therefore, protection includes the five circumstances below:
  • 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’).
Indirect sex discrimination occurs when a provision, criterion or practice (PCP) is applied universally and that PCP:
  • 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.
To demonstrate that a PCP is a proportionate means of achieving a legitimate aim, the aim itself must be legitimate, and must correspond to a real, objective business need which, if not met, would mean the business would suffer a disadvantage.
 
To be proportionate, the PCP must:
  • 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.

Harassment is unlawful where a person is subjected to unwanted conduct ‘related to’ race, and the conduct has the ‘purpose’ (intentionally) or ‘effect’ (unintentionally) of:
  • violating that person’s dignity, or
  • creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her.
When deciding whether conduct did have the unintentional effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant, the law requires tribunals to take account of the complainant’s perception, the other circumstances of the case, and whether it is reasonable to conclude that the conduct could have that effect. This may mean that in some circumstances an over-sensitive complainant who takes offence unreasonably at a perfectly innocent comment would probably not be considered as having been harassed.
 
Note: The term ‘related to’ (race) in the legislation is wide in scope and provides protection against harassment in five different circumstances, in the same way as the term ‘because of’ in direct discrimination (see Direct discrimination above).
 
Example 1: A worker is perceived to be an Australian, when he is actually a New Zealander. Some of his colleagues call him Skippy the Kangaroo and say he is a ‘drongo’ (Australian term for an idiot) if he makes a mistake.
 
Example 2: An English worker tells his colleagues his wife is Scottish. Sometimes his co-workers ask him if he understands ‘jockanese’ or does he need sub-titles when she speaks, and joke that as she makes him wear a kilt then he is the one wearing a skirt in the house, so she must wear the trousers.
 
These examples may be harassment related to race, even though it is not the worker’s own race, that is the subject of the teasing.
Victimisation occurs where an employer subjects an employee to a detriment for carrying out a ‘protected act’, or the employer believes that the employee has, or may, carry out a protected act. Protected acts are defined in the legislation as:
  • 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).
Whether making or supporting a complaint, the giving of false evidence or information, or making a false allegation, is not a protected act if the complainant or witness acts in bad faith.
 
Example: An internal applicant for promotion makes a successful discrimination claim against the employer. Six months later the promotion interviews take place. Although he is the best candidate, he is not offered the job purely because of making the claim (a protected act), whereas another candidate who has not undertaken a protected act is offered the position. The employer’s retaliatory measure is victimisation.
Employers are liable for acts of discrimination, harassment and victimisation carried out by their employees ‘in the course of employment’, whether or not the employer knows about or approves of those acts. However, employers can defend a claim by showing that they took all reasonable steps to prevent their employees from acting unlawfully. Employees are also personally liable for their own unlawful acts where the employer is liable because they were committed during the course of employment.
 
Employers and employees could also be liable for unlawful acts at events involving employees which are held outside work time, but where the nature of the event can be linked to work in some way (in other words, an event which could be described as an extension of employment, for example, a company Christmas function, a ‘leaving do’, a meeting on a work-related issue held at the local pub during an unpaid lunch break, or immediately after work in a bar).
 
To convince an employment tribunal that all reasonable steps have been taken to prevent discrimination, harassment or victimisation occurring, employers must be able to demonstrate that they have followed all the best practice recommendations in the Equality and Human Rights Commission Employment Statutory Code of Practice and the Acas guide Race discrimination: key points for the workplace.

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.

If a tribunal upholds a complaint under the Equality Act 2010 it can make a declaration order, award compensation and/or make a recommendation that the employer takes steps to remove or reduce the adverse effect of the unlawful act on the complainant.
 
Declaration: a declaration is simply a statement that the employer has violated the employee's rights and outlining the nature of the unlawful discrimination.
 
Compensation: compensation orders can be made by a tribunal against the employer and any individually named respondent (for example, a colleague who committed the discriminatory act). Simple interest at a rate of 8 per cent is applied to all elements of the award, except for future loss (see below).
 
The four categories of damages are:
  • 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 2019, 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 £26,300 and £44,000.
    • There is a middle band of between £8,800 and £26,3000 for serious cases which do not merit an award in the highest band; and
    • A band between £900 and £8,800 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 £44,000.
  • 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).
An employment tribunal may make an ‘appropriate recommendation’ that within a specified period the employer takes specific steps for the purpose of removing or reducing the adverse effect of any unlawful act on the claimant.
 
 
Makbool Javaid is a partner and head of employment at Simons Muirhead and Burton

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 response to the consultation confirmed that existing case law will be relied upon to provide protection to individuals against caste discrimination, instead of legislative changes.

We are currently in the process of redesigning our application form. We have always had a section that can be detached from the form that includes equal opportunities monitoring information, such as ethnic origin, disability etc. However, we have never included items such as age on the detachable section because it has always seemed that the recruiters could work that out from the qualifications and work experience dates anyway.
 
So that we can avoid all accusations of discrimination, it has been suggested that we have two parts to the form - one part with all personal information including name and age, and one part that just includes qualifications, work experience and skills. Is this necessary?
Most organisations do have a detachable section that includes information for equal opportunity monitoring, and this is definitely good practice. However, it is only effective if you are actually using the information - so you should be analysing this to determine if any group is under-represented in the applications to your organisation.
 
Removing age from the form is more contentious because, as you say, it is usually possible to get a rough idea of age from qualifications and work experience. However, there is some merit in removing age and name and other personal information, to avoid any perceptive discrimination. This occurs when someone is treated less favourably because it is perceived that they have a particular protected characteristic even if they do not.
 
In the case of Kpakio v Virgin Atlantic Airways Ltd [2013] an applicant was not shortlisted for an interview when he applied for a job as a customer services assistant in his own name, Max Kpakio. He applied again, but this time using the false name of 'Craig Owen', and he was offered a job. However, he also changed the work experience and qualifications of Craig Owen. He was unsuccessful in his claim of race discrimination because he was not comparing two applications that were identical apart from name.
 
Although Kpaiko was unsuccessful, the case does raise some interesting points. Even if ethnic origin is kept in a section that is detached from the form, do recruiters discriminate on the basis of name, presuming a certain ethnic origin? Even if this is not a deliberate decision, does the name affect decisions that a recruiter might make?
 
Given this possibility, having two sections to the form, one of which focuses solely on work experience, qualifications and skills, certainly has merit. This would be a way of significantly reducing the possibility of any discrimination occurring in the shortlisting process.

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?

This rule does cause potential difficulties. In the case of Dziedziak v Future Electronics Ltd [2012] the employee was told that she should not 'use her own language' (which was Polish) in the workplace. This was seen to be direct discrimination, but it should be noted here that other employees in the workplace, who were of other nationalities, were not given the same instruction.
 
In the case of PF Franco v Fyffes Group Ltd [2012] an employee who was a Portuguese National brought a claim that he had suffered indirect discrimination because supervisors, who were all Polish, conducted many of their discussions in Polish and he was unable to understand what was happening. He claimed that this put people who did not speak Polish at a disadvantage, and it could not be justified.
 
However, the Employment Judge did not agree, and the case was struck out at a pre-hearing review. The Judge said: ... to allow people who share a mother tongue to communicate in it is generally likely to lead to clearer communication and efficient management, and no sensible employer would try to suggest that two Polish workers should not speak in Polish between themselves. Of course it is quite different when someone who does not speak that language is also party to the conversation.
 
So, it would seem that, as a general rule, making employees speak English during working time could be a problem. However, it would be reasonable to instruct employees to speak in English when discussing business issues with others who do not speak Polish.
I am the regional manager for a small chain of supermarkets. We have one supermarket in a particularly difficult, inner-city location. The area is rather rough and the supermarket is based in an area where there has been a lot of racial tension - particularly a very negative attitude towards Bangladeshis.
 
I have advertised for a new sales assistant and have had a good number of applicants. However, two applications are from individuals who indicated that their ethnic origin is Bangladeshi. In the area where this supermarket is based there would be a real problem if someone from Bangladesh worked there. It is very likely that the individual would receive a lot of abuse, maybe even physical abuse. The two applicants are still teenagers and I do not think it would be right to expose them to this risk of abuse. My plan, therefore, is to reject these two applications. The supermarket chain does not usually give reasons for rejection prior to interview, so I was just going to send a standard letter of rejection. However, if I were challenged, would it be acceptable to explain that the reasons for the rejection were based on the very best intentions?
The refusal to consider the applications from these two individuals would be direct race discrimination. They are being treated less favourably than people of another racial origins because of their race. Direct race discrimination cannot be justified.
 
This is illustrated in the case of Amnesty International v Ahmed [2009]. In this case, a vacancy for a researcher in Sudan arose. Ahmed, who was originally from Northern Sudan applied for the job. Her application was rejected because the employer was genuinely concerned that she might encounter potentially fatal violence if she travelled to Eastern Sudan or Chad (which would be part of the job role) because of the tensions between those areas and Northern Sudan. Although the reason for the rejection was based on the very best intentions of protecting her safety, this was found to be direct discrimination.
 
Your situation is very similar. Although you have the very best intentions, refusing to consider either of the applicants for the role would be direct race discrimination. It is recommended that you consider them for the appointment without any reference to their race. If one of them is the best candidate for the job then they should be offered the job. However, it might then be appropriate to voice your concerns and to discuss how you could best protect the individual if s/he decides to accept the job.
We recently carried out interviews for a number of vacant positions in our call centre. One of the applicants we rejected has now written to us saying he believes the reason we did not recruit him was because he is of Asian ethnic origin. He has said he will be taking a race discrimination claim to the employment tribunal.
 
The reason he was not recruited was that he had no experience working in a call centre environment. We had 10 vacancies, and a lot of applicants that had directly relevant experience. All of the 10 that were appointed had previously worked in call centres. Can he proceed with his claim? How will he show that we discriminated against him?
He can certainly make a claim of race discrimination, as long as the claim is made within three months of him receiving the rejection.
 
When a claim of discrimination is made, it is often difficult for claimants to prove there was discrimination. They are required to present enough evidence to suggest that something has happened which could be discriminatory. As soon as that low level of proof has been achieved, the burden of proof passes to the employer which must then give a non-discriminatory reason for the events.
 
So, he will be required to have sufficient evidence for the employment tribunal to consider that there is something for you to answer, and then you will have to give your reasons for not recruiting him.
 
When he makes a claim to the employment tribunal, he should set out the grounds for his claim on his ET1 form. If he does not explain his reasons for thinking he has been discriminated against adequately, you could write to the employment tribunal asking for him to be required to provide better reasons for his claim. If he does give reasons that you think are totally unfounded, you could ask the tribunal to hold a pre-hearing review, to consider whether the claim has enough merit to go to a full hearing.
 
In the meantime, ensure you keep the notes of all interviews relating to the vacancies, details of who was appointed and rejected and why, and any other information that relates to the situation. This will be important in helping you defend the claim.

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.