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Racial Discrimination in the workplace

Practical steps you can take to defend yourself and job 11th February 2009: Over the past year there has been a surge in articles alluding to racial discrimination in the UK, particularly in the workplace. In the past couple of weeks there have been wildcat (spontaneous) strikes in the UK in apparent protest at foreign workers taking British jobs. The government fears such frustrations stemming from the current economic climate may create racial resentment.

What has to be recognised is that the UK is a culturally diverse country, great strides have been made in public attempts to eradicate racism, for example the “Kick Racism out of Football” campaign. Racial discrimination of any sort is illegal in the UK, and this article aims to detail relevant race legislation and possible courses of action.

In legal terms, there are four main types of racial discrimination relating to employment:
 
– Direct discrimination: is deliberate and obvious, for example if a promotion is being held only for members of one race, different terms and conditions (including holidays and pay).
 
–    Indirect discrimination: where organisation policies disadvantage one or more racial group, such as insisting on holding meetings on Friday afternoons, when this time of the week is particularly important to both Muslims and Jews, or stigmatising employees who refuse to consume alcohol at office events due to beliefs.

– Racial Harassment: occurs when the workplace is allowed to become a hostile environment for members of a certain race, whether through threats, intimidation or jokes.

– Victimisation: occurs when someone has highlighted a case of racism, and then suffered by for example being denied flexible shifts or high-quality work.

Legislation such as Race Relations Act 1976, Sex Discrimination Act 1975 and the Disability Discrimination Act 2004 and all of its amendments protect individuals from poor treatment on the grounds of gender, colour, race, nationality, religion or ethnicity. The discrimination may take the form of harassment, prejudice, abuse, victimisation and degradation or perhaps more subtle less favourable treatment.

Focusing on racial discrimination or bullying, one of the defining features of the relevant legislation is its deliberate lack of distinction between intentional and unintentional racism. It is concerned only with the fact that racial discrimination occurred.

This is due to the fact that racism (particularly at work) can be direct or indirect, deliberate or accidental. Although it may be direct – from your boss or colleagues – it may also be indirect – and entrenched in the organisation for which you work. Furthermore case law has established that an employer has a duty to protect employees from racial harassment by non-employees whilst they are fulfilling their duties, once such harassment has been brought to the attention of the employer.

Any discrimination faced at work might flow from the actions of your workmates rather than your boss. However, your employer is actually still legally liable for this. They are responsible for ensuring that there is no racism in the work environment they head. In legal terms this is known as ‘vicarious liability’. The employer can only avoid taking the blame if he or she can show that they have taken extensive practical steps to prevent discrimination. This might include taking disciplinary action against anyone guilty of racist behaviour.

Your employer has a general duty to provide a safe and healthy workplace. Harassment itself, where a person feels their safety is in jeopardy, can amount to circumstances of danger just in the same way as physical dangers in the workplace have to be recognised. If there is bullying of any kind, or other behaviour which affects your health or ability to do your job, you may be able to use the law to change your employer’s working structure. Where a person does feel compelled to leave their job because of discrimination this can be viewed as “constructive dismissal”, or “unfair dismissal” if they are sacked.

Businesses must have clear policies on all aspects of racial discrimination, and ensure that all staff members are aware of, and abide by, those policies. In one of the first cases of its kind in the UK, a Maltese national claimed to have overheard racist comments in a conversation between her supervisor and another employee. The tribunal ruled unanimously that the supervisor and the employer were guilty of racial discrimination, and ordered them to pay compensation to the claimant.

Only a year ago, Mr. Meshram, a man of Indian origin from Northampton won a racial discrimination case against a call centre, who had dismissed him for having a pronounced foreign accent. “I was called into a meeting with my boss, who told me I was to be replaced with a better English speaker”, Times Online quoted him as saying at the time. “I know I speak with an accent but my job out there was to give technical advice, not to give expertise on how to communicate. It was an embarrassing and humiliating experience”, he added. Bedford Employment Tribunal found that he had suffered direct and indirect discrimination, and promptly awarded him compensation of £5,000 for hurt feelings and legal expenses.

The statutory Code of Practice on racial equality in employment (effective from April 2006), published by the Commission for Racial Equality (CRE), gives recommendations and guidance to all businesses on how to avoid unlawful racial discrimination and harassment in the workplace.

Although the code does not have the force of law, failure to follow it may count against an employer defending themselves against a complaint of racial discrimination or harassment at an employment tribunal.

Individual employees can also be held legally responsible. Any employee who knowingly discriminates against another employee or applicant on the grounds of race, or who aids discriminatory practices, is acting unlawfully. The Commission for Racial Equality’s Code of Practice states that employees have a duty to comply with measures introduced by their employer to ensure equality of opportunity and non-discrimination.

What practical steps can I take?

Advice differs depending on the nature of the racism or racial discrimination. The most important point is not to ignore it and to try to isolate the problem or perpetrator and voice your concerns.    

The media often highlights cases where large sums of many (settlement) are involved. For example in D’Souza v London Borough of Lambeth, the award came to £358,288.73 of which £3,000 was for injury to feelings, £2,000 was exemplary damages, £18,269 was for loss of pension rights and over £300,000 was for loss of future earnings.

Separately, in September 1998 the former London Borough of Hackney chief personnel officer, a black African named Samuel Yeboah, won a racial discrimination case and accepted £380,000 compensation from the Council after a 104-day hearing at which the tribunal found that the Council’s former Director of Housing, Mr. Bernard Crofton, had bullied and harassed him by making false allegations of fraud. 

You can win of course, but according to the Trade Union Congress, (TUC) the average settlement in a race discrimination case is £5,000. It is also important to know that you may have to pay for your own legal costs which can cost thousands of pounds. Every case is different and you may wish to consult an experienced solicitor if for example you have lost your job because of discrimination and you believe that there is a direct link.

You should consider talking to your colleagues or friends in confidence to see if they might be suffering similar problems. Keep a diary of events and who said what, and any witnesses. This is so important to show a pattern of behaviour, especially if matters deteriorate.

Find out if there is a employee representative at your work place, tell your supervisor or manager, they should raise it the Personnel Officer or Human Rights department in larger companies, or speak to your boss directly if you only work for a small company.

Remember the “duty of care” that your employer, once you have made your employer aware of the problem. If you are not part of a union consider telephoning the TUC (telephone number 0870 6004 882) to find out which one is most appropriate to you. Or telephone ACAS (Advisory Conciliation and Arbitration Service) on 08457 474747.

You can also telephone the Equality and Human Rights Commission on 0845 6046610 (email address [email protected]) which deals with the whole spectrum of discrimination issues. In many cases what people face is bullying, it may not be discrimination against a certain type of individual but ill-treatment specific to you, with Connexions UK (080 800 13219) offering help and advice, particularly for school children and parents. Visit their website on www.bullying.co.uk.

By David O’Neill, Solicitor, Cartwright Adams Solicitors


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