|Equality and Diversity Briefing 6 – Race
Discrimination on the grounds of race became unlawful with the introduction of the Race Relations Act 1976 (RRA). The Act makes it illegal to discriminate against someone on the grounds of nationality and colour, or ethnic, racial, or national group. The RRA contains provisions outside the field of employer/employee relations, but this factsheet focuses on the protection for employees and prospective employees who suffer discrimination in an employment context.
The Race Directive (2000/43/EC) and EC Equal Treatment Framework Directive (2000/78/EC) which aim to harmonise race equality legislation across the EU have also been incorporated into UK law. The Race Relations Act 1976 (Amendment) Regulations 2003 (SI 2003/1626), which implemented provisions of the Race Directive, cover discrimination on the grounds of ethnic, racial or national group, but exclude discrimination on the grounds of nationality and colour.
The key Acts and Statutory Instruments are:
The Race Relations Act 1976 (RRA)
The Race Relations (Formal Investigations) Regulations 1977 (SI 1977/841)
The Race Relations (Questions and Replies) Order 1977 (SI 1977/842)
The Race Relations (Complaints to Employment Tribunals)(Armed Forces) Regulations 1997 (SI 1997/2161)
The Race Relations (Amendment) Act 2000 (currently only applies to public bodies)
The Race Relations Act 1976 (General Statutory Duty) Order 2001 (SI 2001/3457)
The Race Relations Act 1976 (Amendment) Regulations 2003 (SI 2003/1626)
The Race Relations Act 1976 (Statutory Duties) Order 2004 (SI 2004/3125)
The Race Relations Act 1976 (General Statutory Duty) Order 2004 (SI 2004/3127)
The Race Relations Act 1976 (Statutory Duties) Order 2006 (SI 2006/2471)
The Race Relations Act 1976 (General Statutory Duty) Order 2006 (SI 2006/2470).
1. How are employees protected from racial discrimination?
The Race Relations Act 1976 protects employees from unlawful discrimination on the grounds of their race or ethnic background. However, the term 'employee' in the Act has a much wider definition than that contained in other employment legislation, and includes the self-employed and contract workers.
2. Are employers liable for any racial discrimination suffered by employees?
Employers are directly liable under the Race Relations Act 1976, section 4 for discriminating on racial grounds in respect of recruitment, terms and benefits during employment or dismissal. An employer is also liable for the discriminatory acts of its employees done in the course of their employment, whether or not those acts are done with the employer's knowledge or approval. Employers may also be liable for acts of discrimination committed by their agents.
3. When may a claim of direct race discrimination be made?
Under the Race Relations Act 1976, direct discrimination occurs when one person treats another less favourably than he or she treats or would treat other persons on racial grounds. The two key elements are the less favourable treatment and that the difference in treatment is on racial grounds, meaning on grounds of colour, race, nationality, ethnic origins or national origins. Both elements have to be satisfied for a claim to succeed.
4. Can an employer defend itself against accusations of racial discrimination on the grounds that it needed to impose particular conditions that were interpreted as discrimination?
In direct discrimination claims an employer is not able to defend the claim on the basis of justification, as the defence of justification is available in relation to only indirect discrimination. Positive discrimination is generally unlawful under the Race Relations Act 1976 although certain limited forms of positive action are allowed in relation to, for example, charities.
5 What are the elements that constitute a claim of indirect race discrimination?
Indirect discrimination is where a provision, criterion or practice is applied equally to everyone but this disadvantages or would disadvantage people of a particular race or ethnic or national origin compared with other people and the employer cannot show the application of the provision, criterion or practice to be a proportionate means of achieving a legitimate aim, or where the employer applies a condition or requirement that it cannot justify, and with which people of a particular colour or nationality find it more difficult to comply than those of another colour or nationality, so subjecting them to a detriment. The courts must decide between the employer's need to impose a requirement or condition, or apply a provision, criterion or practice, and the discriminatory effect.
6. In what circumstances might an employee make a claim of victimisation under the Race Relations Act 1976?
Usually, claims of victimisation are made where the employee has made an earlier complaint of race discrimination, and believe that he or she has been treated unfairly as a result. It will not matter whether the original underlying claim has been successful. In a complaint of victimisation the race discrimination is not at issue, it is the conduct of the employer towards the employee who has brought a claim or assisted in another's claim.
7. Are there any circumstances in which an employer can insist on recruiting from a particular racial group?
Yes, under certain limited circumstances employers have a defence to a discrimination claim where being of a particular racial group is a genuine occupational requirement or qualification for the job.