Employment Law Solicitors:

Race Discrimination Claims

The Race Relations Act 1976 (RRA) prohibits discrimination on racial grounds. ‘Racial grounds’ is 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.

Indirect Race Discrimination
There are two types of indirect racial discrimination. The first relates to colour or nationality and emanates from the original Race Relations Act definition. The second pertains to race, ethnic or national origin, and was brought in by the Race Relations Act (Amendment) Regulations 2003.

Indirect Race Discrimination On The Grounds Of Colour Or Nationality
This is where an seemingly non-discriminatory stipulation is applied to all but can only be met by a proportionately smaller number of people from a particular racial group, where it is to the detriment of an individual from that group due to the fact that they cannot comply, and the said stipulation 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.

Indirect Race Discrimination On The Grounds Of Race, Ethnic Or National Origin
This is where a seemingly non-discriminatory requirement or procedure applied equally to all disadvantages a particular group of people of the same race or ethnic or national origin is comparison with others, places an individual of the affected group at a disadvantage, and the said requirement or procedure cannot be justified as a proportionate way of accomplishing a valid objective.

Victimisation
It is unlawful to treat a person less favourably because they have made allegations or brought proceedings under the RRA, or because they have helped another person to do so.

Harassment
Harassment as set out in the Race Relations Act (Amendment) Regulations 2003 applies only to discrimination on grounds of race or ethnic or national origins. The Regulations define such harassment as unwanted conduct which violates the victims dignity or which creates an intimidating, hostile, degrading, humiliating or offensive environment for them. The Regulations however do not cover harassment relating to colour or nationality. This kind of harassment is defined as less favourable treatment and may thus constitute direct race discrimination.

Bringing A Race Discrimination Claim

A tribunal claim must be made within three months of the discriminatory act (or last discriminatory act) complained of. Before bringing the claim, the employee must set out their grievance in writing to their employer and wait 28 days before commencing their tribunal claim. Unlike in unfair dismissal claims, employees do not have to have had at least 1 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. 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). In that case, the Court stated that there should be a top band of between £15,000.00 and £25,000.00 for the most serious cases, a middle band of between £5,000.00 and £15,000.00 for serious cases, and awards of between £500.00 and £5,000.00 for less serious and one-off cases. The Court 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