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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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