Racial discrimination is discrimination
on the grounds of race, nationality, ethnic or national origins
or colour under the Race Relations Act 1976 Section 3.
Who can discriminate?
Discrimination can take place within employment,
Applications for employment, the provision of training and
skills, the discrimination into contract workers, Trade Unions,
vocational training bodies, employment agencies and the manpower
services commission. This note will deal with discrimination
within the field of employment only.
In order to establish a claim, someone applying
for a job or an employee must show they have been treated less
favourably under the grounds of their race which includes the
categories of colour, race, nationality, ethnic or national
origins. It is not enough simply to show that an act of discrimination
took place. The Claimant in an Employment Tribunal is also
required to prove that this led to less favourable treatment
because of the act of discrimination.
Ivan who is of Russian nationality, is employed
by a Company to make deliveries in a white van in
the London area. Ivan has been employed by that Company
for three months. When he makes a delivery to one
particular Company, the Foreman at that Company who
we will call Fred at Ignorant Limited loses his temper
with Ivan because he is late on a delivery because
of traffic. He says to Ivan “You ignorant Russian
bastard”. Ivan is very upset about this and
complains to his boss at Deliveries Same Day Limited.
His boss writes to Ignorant Limited and complains
about their Foreman, Fred. |
Let us just analyse what the position is
at this stage. Firstly, has an act of discrimination taken
place? Ivan has been called a “Russian bastard” which
is a direct reference to his nationality. Discrimination on
the grounds of nationality can amount to race discrimination.
His employer, Deliveries Same Day Limited have complained to
the Company who employ Fred. So far, so good. If Ignorant Limited
discipline Fred for making that racist remark, then how has
Ivan been treated less favourably on the grounds of his race
or nationality by his employer who have complained on his behalf?
In short, they have not. If however his employer did not complain
on his behalf and when he made the complaint told him to get
on with it and to just ignore Fred, this could amount to less
favourable treatment if this means that he is subject to continuous
harassment every time he visits Ignorant Limited doing his
job. The Company is aware of it and they are allowing it to
happen.
As you can see, complex situations arise
in claims of this nature. Discrimination can either be direct
discrimination or indirect discrimination.
Direct discrimination can
include treating someone less favourably because of their
race which can include things like not getting promotion
because they happen to be black, being taken on or being
allowed to attend an interview when they have the same qualifications
as someone else because they happen to have an Asian name,
or being subject to racial abuse. There are numerous other
direct discrimination examples.
Indirect discrimination however
is where a system or practice sets up a barrier that substantially
affects one race as compared to another and can include things
like:
People of other nationalities could have
qualifications which are equivalent to qualifications in this
country but we could chose not to recognise those qualifications
so that when they applied for jobs in this country, their qualifications
because they are from abroad, would not count.
This could be an example of indirect discrimination.
However, in the case of indirect discrimination, there is a
defence that the employer can use on the basis of justification
if it is determined that there is discrimination.
Let’s apply these principles to an individual
who has passed a driving test to drive a normal car
in Iraq and he applies for a job in this country
to drive a taxi. If he is excluded from that job
purely on the basis that the Company do not recognise
a foreign driving license, then that potentially
is discriminatory. However, it would amount to justification
if the reason for the exclusion is in order to make
passengers safe on the road and all recognised drivers
must have at least 2 years experience on British
roads before they are taken on as taxi drivers. The
justification in this sense would be in the interest
of safety, all drivers should be fully familiar for
at least 2 years with English driving conditions.
That is not necessarily justifiable. |
The same could be said, for example, of language
difficulties with a doctor or language difficulties with a
teacher. There are numerous other examples.
Let’s summarise where we are up
to
You can discriminate against an employee
if you treat them less favourably on the grounds of race. Race
includes colour, nationality, ethnic origins and national origins.
The law requires that the act of discrimination if it is direct
discrimination is caused or amounts to less favourable treatment
on the grounds of the racial discrimination.
In the case of indirect discrimination, that
can be defined as the position of a requirement on a particular
race makes it more difficult and less likely that the individual
will be able to meet that requirement who is from that racial
group. In this situation, the Respondent can raise the defence
of justification if he can show that the discrimination itself
is justified or for some other good reason such as health and
safety or other examples.
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