Discrimination and the Law #SolicitorChat with The Law Society.

With the rise of the Black Lives Matter movement, there has been a focus on race discrimination in recruitment processes and workplaces. What someone can do if they feel they have been discriminated against because of their race and what employers can do to create and maintain a non-discriminate workplace. We discussed this and more during #SolicitorChat.

Join The Law Society and other firms discussing a different topic each week on Thursday mornings at 0900-1000.

What rights do employees have against racial discrimination in the workplace?

Race is one of the nine “protected characteristics” under the Equality Act 2010 which gives individuals in the workplace a package of rights to protect them from discrimination. In the case of race, this includes colour, nationality, ethnic origins and national origins; it can be either the complainant’s own race or the race of someone else. Race discrimination can take a number of forms, such as direct, indirect, harassment and victimisation. It can also include claims based on a perception about race, even if that perception is not correct. Unlike some other employment rights such as unfair dismissal, an employee has the right not to suffer discrimination from day one and also as part of the recruitment process. Individual discriminators are liable for their own actions, but ordinarily an employer will be liable for the discriminatory acts of its employees.

What is direct and indirect discrimination and how can employers make sure they have an indiscriminate workplace?

Direct discrimination takes place when an employee or job applicant is treated less favourably because of race than others in (or who would be in) the same circumstances. In other words, is race the reason why the individual was treated less favourably? Direct discrimination can never be justified. A blatant example might be that someone isn’t promoted because a manager thinks that people of their ethnic origin are lazy. Indirect discrimination is more nuanced and may not even to appear to be discrimination at first glance. This is where an employer unjustifiably applies a “provision, criterion or practice” which disadvantages employees or job applicants of a particular racial group in comparison with people of a different racial group. An example might be a policy of not employing staff who require immigration permission. Staff education and training on diversity and inclusion at all levels of an organisation are key to minimising the risks of discrimination of any kind in the workplace. They won’t guarantee that no discrimination will take place, but it will put an employer in the best possible place to minimise risks and defend any claims which may be brought.

What can an employee do if they feel they have been discriminated against because of their race?

The appropriate response by an employee will depend upon the nature of the discrimination which they believe they have suffered. If a colleague makes a one-off out-of-character remark which you feel doesn’t require formal intervention by the employer, it might be able to be addressed by a quiet word directly with them. However, if a remark was offensive or humiliating, then an employee should consider taking advantage of their employer’s grievance procedure. Similarly, if a formal decision was taken by an employer which appeared discriminatory, it would again be appropriate to raise a formal grievance. If it was not possible to resolve the issue directly with the employer, then you could bring a claim in the employment tribunal against both the individual discriminator and your employer. However, there are strict time limits to do so and strict processes to follow before doing so. A specialist employment solicitor can advise you on all aspects of potential claims and assist you in bringing claims in the employment tribunal.

What can someone do if they feel they have been discriminated against during the recruitment process because of their race?

If you are unsuccessful in any application for employment or for a new role, it is always worthwhile asking for feedback. If that feedback is not forthcoming or indicates that there may be some unsaid reason for rejection, you could raise a formal grievance if you are already employed by the employer. Alternatively or in addition, you could make a subject access request under the General Data Protection Regulation where you ask for details of all information which they have processed about you. The response to this request must ordinarily be provided within one month and may reveal information from which you could infer that discrimination has taken place. You could then attempt to settle your issue with the organisation and, if that was not successful, bring an employment tribunal claim against them. Very occasionally, discrimination in recruitment is considered lawful, but this is rare.

What top tips would you give to employers to successfully create and maintain a non-discriminate workplace that all employees can feel comfortable and welcome in?

Aside from educating and training staff, organisations can implement strategies and publish “aspirational targets” to increase diversity and inclusion. For larger employers, this could include reviewing succession planning and ethnicity pay gaps. Organisations should also make it clear to all staff both by words and deeds that ethnicity (together with sex, disability and other protected characteristics) is not a barrier to success in the workplace. All staff should feel that they can be a valued part of their organisation and it is particularly important for senior staff to be seen to be involved in and leading these initiatives.

The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP

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