Direct Race Discrimination

Have you faced discrimination at work because of your colour, nationality or your ethnic or national origins? The law protects you and we can support you.

Individuals within the field of employment, occupation and vocational training are protected against race discrimination, harassment and victimisation under the Equality Act 2010 implementing the European Union Race Directive (2000/43). This Act protects employees, employee shareholders, workers and a wider category of individuals who are self-employed, provided that they are “in employment” and that their contract obliges them to perform the work personally.

Direct discrimination:

Direct race discrimination occurs where, because of race, a person (A) treats another (B) less favourably than A treats or would treat others (section 13(1), Equality Act 2010).

  • Race: is defined broadly, it encompasses colour, national origins, ethnic origins, religious groups and castes. Whilst assessing ethnicity, country of birth is only one of the specific factors which may contribute to a finding that the person is a member of a particular ethnic group. “Ethnic origin” should therefore be regarded as a combination of factors, some objective and some subjective. These include common nationality, religious faith, language, cultural and traditional origins and backgrounds (House of Lords, Mandla v Dowell Lee [1983] ICR 385). Language only cannot be a distinguishing factor (EAT, Gwynedd County Council v Jones [1986] ICR 833).
  • Comparators: the claimant must be treated less favourably compared to someone who is the same as the claimant in all material respects but is not of that race. Meaning that the comparator must have the same or nearly the same circumstances as the claimant, except that he or she is not of the same race. In some circumstances, the comparator can be different. For instance, where the claimant argues that they have been discriminated because they have a black partner, the comparison will be with someone who (regardless of the comparator’s own race) does not have a black partner.

It is for the claimant to select the comparator, although the tribunal may substitute a different hypothetical comparator if they believe that the chosen comparator is unsuitable.

  • The specific issue of segregation: deliberately segregating a worker from others of a different race is specifically prohibited under the Equality Act 2010. In such case there is no need to identify a comparator, however, the segregation must be a deliberate act rather than a situation that has occurred inadvertently.
  • Less favourable treatment: it is for the tribunal to determine what amounts to less favourable treatment for direct discrimination purposes. A claimant must show that they have been treated less favourably in some way than a real or hypothetical comparator has, or would be. A different treatment does not necessarily amount to a less favourable treatment. Less favourable treatment is assessed regarding all of the circumstances of the case. A simple example could be that you were not appointed to a job or were not promoted because of your skin colour.
  • Causation: for direct race discrimination to occur, less favourable treatment must be “because of” race. The discriminatory reason need not be the sole or even principal reason for the employer’s actions. If race was a substantial cause, a tribunal can find that the action infringed the Equality Act 2010.

Who is liable? If one employee discriminates against or harasses another, the employer will be liable unless it has taken reasonable steps to prevent such conduct from taking place. The offending employee may also be liable. Judges usually award a compensation to the claimant who suffered direct race discrimination.

Exceptions: race discrimination may be lawful if (not a comprehensive list):

  • Occupational requirements apply;
  • Positive action is part of the process of promotion or recruitment;
  • Language requirements apply;
  • A specific nationality is required under statutory provisions; or
  • Restrictions in security services apply where jobs are reserved to UK nationals.

Please do contact us at 020 8579 1345 or email us at info@thelawclinic.co.uk if you think that you fall within these requirements or if you would like legal advice in regards to this matter.

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