Assessing a claim for racial discrimination
Having briefly explained those issues, I
would like to move on to discuss how the Tribunals assess
a claim for racial discrimination. They look to find a comparator.
That is they look to compare treatment of one individual against
another. If the comparator is treated more favourably than
the person with race with the race claim, then it is open
to the Tribunal to draw the inference unless there is any
evidence to the contrary that the reason for that more favourable
treatment of the comparator is racial discrimination.
Let’s go back to Ivan and Fred and change the
circumstances and say that Fred now works with Ivan
for the same Company and he is Ivan’s Direct Supervisor.
He makes the same remark to Ivan and not only that he
disciplines Ivan for being late by 2 minutes and he
does not discipline Simon who is white when he is late
regularly by a quarter of an hour. In these circumstances,
the Tribunal could draw the inference that he treats
Simon who is white and from this country better than
Ivan who is Russian and white from another country because
he picks on Ivan and he does not pick on Simon for being
late. |
This is why the Tribunal look for a comparator,
someone to compare too. Sometimes unfortunately, there is
no clear comparator of someone to compare to so the Tribunal
are obliged then to create the characteristics of a hypothetical
comparator and ask themselves the question whether a hypothetical
comparator would be treated the same as the person making
the claim.
Sometimes, the law will allow discrimination
on the basis if a genuine occupational qualification is required.
For example, you advertise for a community
worker who you want specifically to work the Asian community
and you set up pre-requisite that the person must be able
to speak Urdu or Punjabi then you could quite properly not
consider someone who is unable to speak those languages and
who happens to be white to take on that role because the role
specifically requires someone from that community who can
speak those two languages in addition to English.
Other examples can include actors applying
for a specific role which is well recognised to require a
particular member of one race. Although to be fair, the restriction
is less often used now than in the past and is genuinely frowned
upon even in Shakespeare. Now, black actors have been able
to play parts other than Othello because of a changing attitude
amongst the theatre going public.
If you are picked on or victimised because
you have made a claim to the Employment Tribunal or because
you have complained about being racially discriminated against,
this can give you a separate right to make a claim of victimisation
at the Employment Tribunal.
Racial discrimination is extremely complex
and you would require far more detail probably over many pages
in this web page with sufficient information for someone contemplating
a claim. However, I would also recommend in these circumstances
you contact us
by e-mail to discuss your case fully.
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