Areas of Expertise
The Equality Act 2010 (the EqA), which came into force on 1 October 2010, essentially replaces the law governing discrimination previously governed by the Race Relations Act 1976. The EqA prohibits various discrimination offences including direct discrimination, indirect discrimination, harassment and victimisation, all of which are explained below.
Definition of Race
Race is just one of the nine "protected characteristic" the EqA protects. Race is defined as including colour, nationality, and ethnic or national origins. However, the EqA states this list is non-exhaustive and it is likely that, as case law develops, the definition of race may broaden.
An employee is discriminated against if the employer, "because of" race, treats the employee less favourably than they treat or would treat any other employee.
There is a subtle difference between what constitutes direct discrimination prior to the EqA as compared with direct discrimination under the EqA. The previous law referred to the treatment being "on grounds of race" rather than "because of race." This new definition means that the discriminatory feature need not belong to the person complaining of having been subjected to discrimination. For example, a person may be directly discriminated against where the reason for the treatment is because of the race of their partner.
Direct Discrimination by association and perception
In addition, the EqA, makes it possible for a person to be discriminated against by association and perception. For example:-
- An employer treats an employee less favourably because of the people he is associated with, i.e. his or her friends or family are of a particular race; or
- An employer treats an employee less favourably because he believes (i.e. perceives) that individual to be of a particular race.
Indirect discrimination arises where the employer applies a provision, criterion or practice equally to all employees but which:
- puts or would put an employee of a particular racial group at a particular disadvantage when compared with an employee of another race;
- puts or would put the employee at that disadvantage; and
- the employer cannot show to be a proportionate means of achieving a legitimate aim.
An example of indirect discrimination might be for an employer not to consider job applications from applicants of a certain area because of its bad reputation but the effect of this is that individuals of a particular race are disadvantaged. Another example would be to exclude applications from individuals who require work permits rather than select individuals by reference to their qualifications and skills.
This occurs when the employer, engages in unwanted conduct related to an employee's race, ethnicity or national origins that has the purpose or effect of:
- violating the employee's dignity;
- of creating an intimidating hostile, degrading, humiliating or offensive environment for the employee.
There is a subtle difference between what constitutes direct discrimination prior to the EqA as compared with direct discrimination under the EqA. The previous law referred to the unwanted conducted being "on grounds of race" rather than "being related to race."
Discrimination by association and perception
Again, this subtle difference means that individuals may be discriminated against because of persons they are associated with or that they are perceived as being of a particular race.
An employee is victimised against if the employer treats the employee less favourably because that employee (or the employer believes the employee):
- intends to bring or has brought proceedings against the employer, or any other person under the EqA;
- intends to give or has given evidence or information in connection with proceedings brought by any person against the employer, or any other person, under the EqA;
- intends to do or has otherwise done anything (or intends to do something) under or by reference to the EqA in relation to the employer or any other person;
- intends to allege or has alleged that the employer, or any other person, has committed an act which would amount to contravention of the EqA.
Under the EqA, individuals are no longer required to demonstrate they have been treated less favourably than someone who has not (or is not suspected of having) carried out one of the above (i.e. a real or hypothetical comparator). Accordingly, the question for the Tribunal's to determine will be the reason why the employee has been subjected to a detriment.
In certain cases, it is possible that an employer can justify their actions in respect of race discrimination. It is possible to discriminate against individuals in cases where:
- being of a particular race or part of an ethnic or national origin is an occupational requirement;
- it is proportionate to apply that requirement in the particular case; and
- the person to whom that requirement is applied does not meet it, or
- the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that the person meets it.
In order to bring a claim under EqA for race discrimination, it is necessary for the employee to bring a claim to the Employment Tribunal within three months of the discriminatory act. It is important to note that the three months limit starts to run from the date of the discriminatory act. In the event that it is not possible to bring a claim within this time limit, an extension may be granted if it is just and equitable to do so.
In the event that an employer is found to be liable for their actions, the Tribunal may make an order for any of the following which it regards to be just and equitable in the circumstances:
- a declaration of the employee's rights;
- an order that the employer pays the employee compensation;
- a recommendation that the employer takes specific action to prevent or reduce the adverse affects of discrimination.