Racial discrimination at work: HR help

Being an equal opportunities employer means taking positive steps to prevent all forms of discrimination, including racial discrimination at work.

Tribunal claims for unlawful racial discrimination are costly to defend, damaging to your reputation as an employer, and can have a profoundly negative impact on workplace morale. As such, taking positive steps to prevent unlawful discrimination is essential to protecting your business and your employer brand.

In this guide, we consider the law on race discrimination, from what this means for employers preventing issues at work, to how to deal with complaints.

What is racial discrimination at work?

Racial discrimination at work is when someone is treated less favourably, or put at a disadvantage, because of their race. The Equality Act 2010 protects job applicants and employees from discrimination, harassment and victimisation because of race, as one of nine protected characteristics covered by the Act.

The term ‘race’ encompasses several different elements, and is effectively used an umbrella term for the following:

• Colour: this refers, for example, to being either black or white, and tends to overlap with the concepts of ‘ethnic origin’ and ‘national origin’.
• Ethnic origin: this usually refers to the ethnic group to which someone belongs, a group typically with its own cultural traditions and shared history that sets it apart from other groups. The group may also have a shared language, religion and geographical origin, and can be a minority or oppressed group, such as Sikhs, Jews or Irish Travellers.
• National origin: this refers to someone’s birthplace, where the geographical area and its history can again be key factors here. Examples include Welsh and Scottish, although national origin can also include origins from a nation that no longer exists, for example, Yugoslavia.
• Nationality: this usually refers to the recognised state of which a person is a citizen, ie; what it says in their passport, if they have one. This can be different from someone’s national origin.

A person’s ‘race’ can comprise of two or more of these different aspects. By way of example, an employee’s racial group could be a mixture of colour and nationality, such as Black South African, or they could be Black and British, but follow African Caribbean culture, customs and traditions. A person may even be a British citizen but follow the customs of the country of his or her parents.

What are the different types of racial discrimination?

The Equality Act sets out four different types of racial discrimination at work:

• Direct discrimination: where someone is treated less favourably than others because of their colour, ethnic origin, national origin or nationality.
• Indirect discrimination: where a provision, criterion or practice that applies equally to everyone puts someone from a particular racial, ethnic or national group at a disadvantage when compared with others.
• Harassment: where someone is subject to unwanted conduct at work because of their colour, ethnic origin, national origin or nationality.
• Victimisation: where someone is mistreated because they have made a complaint about harassment or racial discrimination at work.

Examples of direct racial discrimination at work

Direct racial discrimination refers to overt prejudicial treatment because of someone’s colour, ethnic origin, national origin or nationality. This could involve a decision not to employ someone, to dismiss them, withhold promotion or training opportunities, offer less pay or poorer terms and conditions of employment, or deny them certain contractual benefits.

For example, an Indian student applies for a part-time job at a British family-run country pub, but is refused the role because the owner believes they will struggle to ‘fit in’ with the other staff who are all English.

Direct discrimination could also arise because of how someone’s race is perceived, regardless of whether or not this perception is correct, or because of the race of someone they associate with, such as a friend, family member or colleague. These types of direct discrimination are known as discrimination by perception or discrimination by association.

Examples of indirect racial discrimination at work

Indirect racial discrimination at work is where you have in place a policy, procedure, rule or requirement that applicants or employees from a particular racial, ethnic or national group are less likely to be able to meet than other people, and this places them at a disadvantage.

This could involve, for example, your recruitment or redundancy selection criteria, contractual benefits or any other workplace practice. For example, an Italian graduate is turned down for an IT job for which she is otherwise suitably qualified because having English as a first language is a requirement of the job.

There are limited circumstances in which indirect discrimination may be objectively justified, but only if you can prove that this is ‘a proportionate means of achieving a legitimate aim’. However, this can be a difficult process, involving weighing up the needs of your business against the discriminatory effect on those employees with the race protected characteristic.

To objectively justify indirect racial discrimination at work, you will not only need to establish a good business reason for the treatment, but also show that your actions are appropriate and necessary. As such, you should always closely scrutinise whether any discriminatory provision, criterion or practice can really be justified, and try to find better and less discriminatory ways of doing things.

Examples of racial harassment at work

Racial harassment at work is where someone is persecuted because of their colour, ethnic origin, national origin or nationality, and this has the purpose or effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.

This can include bullying, nicknames, insults, threats, jokes, banter, gossip, asking intrusive or inappropriate questions, excluding someone, such as from meetings or events, or ignoring them. It can also be verbal, written or physical.

For example, a French employee is regularly teased at work over her accent, and work colleagues also make jokes about her eating cheese and drinking wine when she goes for lunch. When she complains about this conduct to her line manager she is told to ‘laugh it off’.

Examples of victimisation at work because of race

Victimisation at work because of race is where an employee is subjected to a detriment for making an allegation or raising a grievance about equality or discrimination in the workplace, and/or for supporting a complaint of discrimination or giving evidence relating to a complaint. Victimisation may also occur because an employee is suspected of doing one or more of these things.

A detriment could include anything from an employee being labelled a troublemaker to being denied training or promotion, or even dismissed. For example, where an employee is denied a pay rise because they gave evidence in support of a grievance raised by a co-worker, that grievance being that the person was called offensive names about being Asian by their line manager.

The employer’s duty to prevent racial discrimination

An employer is under a legal duty not to discriminate against its employees, either directly or indirectly, or through harassment or victimisation. Racial discrimination does not need to be deliberate or intended. You may discriminate against someone without realising it or meaning to, but this might still be unlawful.

As an employer, you are also potentially responsible for the discriminatory acts of your staff. This means that if someone is subjected to, for example, racist remarks or conduct at work by a colleague or line manager, if you fail to take all reasonable steps to prevent this you will still be legally liable.

As such, if you treat someone unfairly because of their race, or fail to take reasonable steps to prevent racist behaviour within your workplace, you may find yourself facing a claim before the employment tribunal for unlawful discrimination. These claims can be complex and costly to defend, with the possibility that you may be ordered to pay an uncapped award of damages.

Practical advice for employers

The following practical advice in preventing racial discrimination at work can help to minimise any exposure to costly legal proceedings and help to avoid issues of race discrimination within your workplace:

Develop clear & robust workplace policies

By putting written policies in place on equality, diversity and dignity at work, this should help to promote a workplace culture that encourages inclusion and discourages discrimination, harassment and victimisation.

All reputable employers should have an equal opportunities policy in place, as well as a policy banning bullying and harassment, either because of race or any other protected characteristic. It is important to emphasise to your staff the need to treat others with respect, and that any allegations of racial discrimination and harassment at work will be taken seriously and can result in disciplinary action.
It is also important to foster an inclusive workplace culture in which employees feel easily able to come forward, without fear of reprisal, if they experience or witness any discriminatory behaviour.

Review your recruitment & management practices

By reviewing your workplace practices you can ensure that these are not in any way discriminatory, leading to racial discrimination at work further down the line. This should involve carefully scrutinising your recruitment and selection processes, as well as your practices relating to pay and benefits, training and development, and selection for promotion, redundancy or dismissal.

In particular, to prevent racial discrimination during the recruitment process you should stay clear of any reference to a particular race or nationality when advertising a job role, and avoid advertising via any place or media aimed at a specific racial group. There can, however, be rare exceptions to this general rule.

This can include where you are seeking to take positive steps, for example, to boost the number of ethnic minority groups that are disadvantaged or under-represented within your workforce. It could also be where there are strict occupational requirements for a particular role, although this is rare.

Train your managers, HR personnel & staff

By training management, HR personnel and staff on racial discrimination at work, this can help to promote equality and diversity within the workplace, and minimise incidents of harassment and victimisation.

Those with managerial and HR responsibilities need to understand the different forms of racial discrimination, how they can arise and how to deal with any incidents or complaints. They will also need to be familiar with all internal procedures, including your grievance and disciplinary procedures.

It is also good practice for an employer to provide training for all members of staff to establish a culture of respect, and provide an overall awareness and understanding of what constitutes acceptable and unacceptable behaviours. This is especially important because innocent banter, jokes and racial stereotyping can constitute some of the most common forms of race discrimination.

Know how to handle grievances effectively

By knowing how to effectively handle grievances relating to racial discrimination at work, this can help to resolve any workplace conflict quickly and internally, minimising your exposure to a claim before the employment tribunal.

If you do receive a complaint concerning race discrimination, you must always thoroughly investigate the matter to see if there is any merit to it. You must also deal with the matter promptly and sensitively.

If the allegations are founded, you must go on to take appropriate disciplinary action against the perpetrator based on the severity of the incident. This could range from anything from a formal written warning to summary dismissal.

It is also useful to think of how any future instances of racial discrimination at work might be prevented, for example, through equality and diversity training, or a refresher training session, for all staff.

Finally, it’s important to remember that if you become aware that discrimination is taking place because of someone’s race, you do not wait until a grievance is raised. The sooner action is taken the more easily it can be resolved, and it is less likely that you will be liable for the discriminatory actions of those involved.

Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.