The Race Relations Act (RRA) 1976 and The Equality Act (EA) 2010 prohibit discrimination on racial grounds. ‘Racial grounds’ are defined to include race, colour, nationality or ethnic or national origins and there are four main types of racial discrimination: direct, indirect, victimisation and harassment.
Direct Race Discrimination
This occurs when a person has been treated less favourably on racial grounds than others in similar circumstances. The test of whether there has been less favourable treatment is comparative. There may be a specific individual who can be a comparator, but where there is no comparator the complainant can use a hypothetical one. Direct discrimination includes associative discrimination (where an employee is treated less favourably because they are associated with another person who possesses the protected racial characteristic) and discrimination by perception (where an employee is treated less favourably because others perceive them to possess the protected racial characteristic even if they don't).
Indirect Race Discrimination
This is where a seemingly non-discriminatory practice, criterion, or policy is applied to all but can only be met by a proportionately smaller number of people from a particular group who possess a particular protected racial characteristic, where it is to the detriment of an individual from that group due to the fact that they cannot comply, and the said practice, criterion, or policy cannot be justified on non-racial grounds. An example of this type of discrimination is a rule that employees cannot wear veils over their face as it could, for example, exclude Muslim women who wear them. Employers who impose such a rule would have to justify it on non-racial grounds.
It is unlawful to treat a person less favourably because they have made allegations or brought proceedings under the RRA 1976 and EA 2010, or because they have helped another person to do so.
Harassment is defined as unwanted conduct which violates the victims dignity or which creates an intimidating, hostile, degrading, humiliating or offensive environment for them. Following changes introduced by the EA 2010, these regulations apply to claims relating to race, ethnic, and national origins, and colour and nationality. Furthermore, an employee can also bring a claim of harassment even where it is not directed at them personally, so long as they can show that the harassment created an offensive environment for them to work in.
Bringing A Race Discrimination Claim
A tribunal claim must be made within three months of the discriminatory act (or last discriminatory act) complained of. Unlike in unfair dismissal claims, employees do not have to have had at least 2 years continuous service with the employer to be entitled to bring the claim. Should the employees claim be successful, the tribunal can make recommendations and award compensation. Should the employer fail to comply with recommendations made by the tribunal for action to reduce discrimination without reasonable justification, the tribunal can award additional compensation on top of what it may have already awarded. Furthermore, for claims brought from October 2010 onwards, Tribunals can now demand that employers implement changes to prevent further discrimination taking place. Compensation awards in discrimination cases are unlimited and unlike in unfair dismissal cases, there is no such thing as a 'basic' or 'compensatory' award. Instead, the award normally comprises the following:
- Injury to Feelings: Comprise separate awards for hurt feelings, aggravated damages, and injury to health. The criteria for assessing compensation for hurt feelings were set out by the Court of Appeal in the case of Vento v Chief Constable of West Yorkshire (No.2) (2003), as amended by Da'Bell v NSPCC (2009). As a result of these cases, there is a top band of between £18,000.00 and £30,000.00 for the most serious cases, a middle band of between £6,000.00 and £18,000.00, and awards of between £500.00 and £6,000.00 for less serious and one-off cases. The Court in Vento stated that awards of less than £500.00 should be avoided. An injury to health claim can be incorporated into the injury to feelings claim, but should there be a separate award for it, the tribunal has to ensure that there is no element of duplication. Finally, aggravated damages can also be awarded as part of the injury to feelings claim, although awards for this element do not usually exceed £5,000.00 and are only awarded should the employers conduct have been especially cruel and malicious.
- Loss of Earnings: Normally makes up the bulk of the claim and includes both actual and future loss of earnings. Future loss can be extensive where psychiatric injury has been sustained as a result of the discrimination and makes it difficult for the employee to obtain new and appropriate employment.
- Injury to Health (Personal Injury): Is most commonly for psychiatric injury. Nevertheless, where a claim for personal injury is included, the employee loses the right to bring a claim in the civil courts for it.
- Ancillary Losses: These can be for items such as the cost of looking for alternative employment and pension loss.
- Interest: Interest on the compensation award can be claimed
What To Do If You Have A Race Discrimination Claim
Should you require advice on race discrimination, then please do not hesitate to contact us. We can be contacted either by telephoning us on 0333 3010 700, or by completing the questionnaire on the right hand side of this page.
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