DAVID ROYDEN - EMPLOYMENT SOLICITOR
UK EMPLOYMENT LAW

David Royden is a Partner with Laytons Solicitors and Head of Employment Law, Manchester, UK

Laytons Solicitors is a national law practice specialising in all aspects of Company and Commercial Law

Laytons Solicitors, 22 St John Street, Manchester M3 4EB.
Tel: +44 (0) 161 834 2100
Fax: +44 (0) 161 834 6862

Offices at London, Manchester and Guildford, UK

 

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Dismissal on grounds of Unlawful Discrimination

Where dismissed employees have made a complaint under the legislation relating to discrimination on grounds of sex, race, disability, religion or belief or sexual orientation and are also eligible to make a complaint of unfair dismissal they should do so, even if it is thought that the reason for dismissal was an unlawful act of discrimination.

RACIAL DISCRIMINATION

In employment it is unlawful to discriminate against persons on the grounds of colour, race, nationality, ethnic or national origins.

There are two kinds of racial discrimination: direct and indirect.

DIRECT DISCRIMINATION

An employer discriminates directly against a person if, on racial grounds, the employer treats that person less favourably than another. To establish discrimination it is not sufficient to show certain treatment is different, it must be shown to be both:

  • less favourable than the treatment which was (or would be) accorded to another person, and
  • less favourable because of the colour, race, nationality, ethnic or national origins of the person who was less favourably treated, or of someone else connected with that person (for example, their spouse).

It is not necessary to show that unfavourable treatment on racial grounds was openly intended: often it will be possible to infer that discrimination was intended, from the circumstances in which the treatment occurred.

INDIRECT DISCRIMINATION

An employer may indirectly discriminate against a person if the employer imposes a requirement or condition which seems to affect employees of different racial groups equally, but which in practice disadvantages a far greater proportion of one particular racial group. However the following factors also need to be present to constitute indirect discrimination:

  • the requirement or condition is applied equally to other employees regardless of their racial group
  • the proportion of people in the disadvantaged person’s racial group who can comply with it is considerably smaller than the proportion of those not in that group who can comply
  • the individual suffers detriment because he or she cannot comply
  • the employer cannot show the condition or requirement to be objectively justifiable irrespective of the colour, race, nationality, ethnic or national origins of the person to whom it is applied

In order to justify that the requirement or condition imposed is reasonable three questions must be asked:

  • was the employer's objective legitimate?
  • were the means used to achieve it reasonable in themselves
  • were they justifiable and balanced in proportion to their discriminatory effect?

By way of example, if an employer for no good reason required applicants for a clerical job to be wine connoisseurs, that requirement may be considered to be discriminatory against Muslims who are forbidden by their religion to drink alcohol. Such a requirement may not be discriminatory in considering applicants for the job of wine waiter whose duties include the tasting of wine.

Are there any exceptions permitted?

An employer may lawfully discriminate in the arrangements made for selecting employees for a job where being a person of a particular racial group is a genuine occupational qualification for the job and discrimination against other racial groups is permissible. Examples would include occasions where a person of a particular racial group is needed for reasons of authenticity or for a specific purpose such as a modelling or an acting role or to provide people of a same particular racial group with personnel services promoting their welfare.

It is also permissible to engage in Positive Action which is designed to help under represented racial groups compete on equal terms with others in the labour market (e.g. encouraging members of a particular racial group to apply for particular work).

What is Racial Harassment?

Racial harassment is racial discrimination and is unlawful. Racial harassment may include :-

1. Abusive language and racist jokes;
2. Racial name calling;
3. The display or circulation of racially offensive, written or visual material including graffiti;
4. Physical threats, assault and insulting behaviour or gestures;
5. Open hostility towards workers or other individuals of a particular racial group, (including organised hostility) in the workplace;
6. Unfair allocation of work and responsibilities;
7. Exclusion from normal workplace conversation or social events, i.e. being “frozen out”.

Whilst the above list gives examples of racial harassment, harassment takes many forms, from relatively mild banter to actual physical violence and the above examples are not exhaustive.

OTHER UNLAWFUL ACTS

Further forms of discrimination which are unlawful include:

  • Segregation of a person from others on racial grounds
  • Instructions to one person who has authority over another to discriminate
  • Inducing a person to do anything which is discriminatory
  • Victimisation against any person because they have asserted their rights under race equality law or have assisted someone else to do so
  • Advertising in a manner which indicates an intention to discriminate

Any unlawful act (other than a criminal offence) under the Race Relations Act committed by an employee in the course of his employment is considered and treated as also having been done by his employer, whether or not it was done with the employers knowledge or approval. The employer will have a defence if the employer can prove that such steps were taken as were reasonably practicable to prevent the employee from doing that kind of act during the course of their employment.

In deciding whether an employer has taken such steps, regard will be had to such matters as whether the employer issued a written policy to employees on race discrimination, whether the employer has given its managers training in such matters and whether the employer has taken steps to discipline employees who have been guilty of race discrimination.

What are the penalties involved for racial discrimination?

If an Employment Tribunal finds that a complaint of racial discrimination is well founded it can make any of the following orders:

  • Declaratory Order - an Order declaring the rights of the employee and the employer in relation to the act complained of
  • Compensation - an Order requiring the employer to pay compensation to the employee. This may include damages for injured feelings and compensation for loss of opportunity in the labour market going beyond the actual loss of wages. There are no limits on compensation in the Industrial Tribunal for racial discrimination.
  • Recommendation of remedial action - a recommendation that the employer take within a specified period action to alleviate or reduce the effect on the employee of any act of discrimination complained of.

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