Now covered by the Equality Act 2010, race discrimination, in common with several other strands of discrimination, prohibits direct or indirect discrimination, harassment and victimisation.
Direct discrimination, where someone is treated less favourably than another because of their race, cannot be justified in court. ‘Race’ includes colour, racial group, nationality or ethnic or national origins.
Indirect Discrimination occurs if you apply a provision, criterion or practice (PCP) equally to everyone but the provision, criterion or practice puts persons of a particular race at a particular disadvantage when compared to other persons not of that race. Indirect discrimination can be justified if the employer can show that the PCP is a proportionate means of achieving a legitimate aim.
Harassment, for example, is unwanted conduct related to race that has the purpose or effect of violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her.
Victimisation can occur where a person is subjected to detriment because they have performed, or the employer believes they have performed, or may perform, a “protected act” i.e. raise a grievance.
Those protected from discrimination inlclude;
· actual and prospective employees;
· some self-employed workers;
· contract workers;
· actual and prospective partners in a partnership or a limited liability partnership; and
· people seeking or undertaking vocational training.
Some examples may help to unravel what can be quite a complex subject.
Employer A rejects all job applicants who aren’t white British. This is direct discrimination and cannot be justified.
Employer B insists that new recruits have a reasonable command of English in order to be able to communicate with customers, who predominantly speak English. This is indirect discrimination but may be justifiable if the employer can show a negative impact on his business of employing non-English speakers. The tribunal may decide that the needs and wants of the customers justify Employer B’s discriminatory behaviour. The PCP of needing some English here is ruled to be a proportionate means of achieving a legitimate aim.
Employer C insists that his taxi driver recruits must speak fluent English in order to communicate with customers. This indirectly excludes many applicants from different nationalities (and so is indirectly discriminatory). On analysis the employment tribunal finds that ‘fluent’ English is too restrictive a requirement (some English would have done) and so the PCP of requiring fluent English is not ruled to be a proportionate means of achieving a legitimate aim.
Typical employment law pitfalls
Employers sometimes place more emphasis on particular skills or requirements (e.g. language) than is reasonably required. Although it is important to check the legal status of all potential employees it is important to check these for everyone, not just those who aren’t ‘obviously’ British. Banter in a workplace can sometimes make a day pass enjoyably. But what is ‘banter’ to one person may not be to another and great care should be taken to ensure all employees understand the boundary between acceptable and unacceptable behaviour.
An employers’ liability is not limited to its own actions. There are circumstances in which the employer could also be liable for the acts of others (i.e. employees, contractors)
The usual 2 year minimum continuous service requirement for bringing claims at an employment tribunal does not exist in the case of unlawful discrimination. No service is required; hence recruitment practices should be free of discrimination.
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