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If you feel you have been discriminated against in favour of another person because of your colour or religion then you may have a claim against your employer.

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A SUMMARY OF THE LAW

Race discrimination falls into 4 categories: direct, indirect, harassment and victimisation.

Unlike unfair dismissal legislation which protects ‘employees’ only, race discrimination can be claimed by agency workers, other contract workers and even job applicants.

Race includes colour, nationality and ethnic or national origins.

Direct race discrimination

This is where a person is treated less favourably than others because of his or her race.

In order to claim direct race discrimination, you will need a comparator of a different race to measure your treatment against. The comparator can be hypothetical but their circumstances must not be materially different from yours.

The less favourable treatment need not be because of your actual race, but instead the race which you are perceived to be. You can also bring a direct race discrimination claim even where the treatment is not related to your own race but instead the race of someone with whom you associate (e.g. if your partner is black).

The motive of an employer is irrelevant and the defence of justification is not available for direct race discrimination.

Indirect race discrimination

Indirect race discrimination occurs where an employer applies a provision, criterion or practice across the board which puts or would put you at a particular disadvantage because of your race. Even if the provision is apparently unbiased given that it is applied to all employees regardless of their race, if it has the effect of disadvantaging you given your race, this could amount to indirect discrimination. An example could be a requirement for all job applicants to have GCSE Maths and English: people educated in countries which do not have GCSEs would be discriminated against if equivalent qualifications were not accepted.

Employers to have another defence when it comes to race discrimination: that the race specification is down to an occupational requirement: e.g. where the position requires the candidate to provide personal welfare services to a particular ethnic group and those services are most suited to be performed by someone from said ethnic group given their awareness of the cultural sensitivities.

Employers do have a defence when it comes to indirect race discrimination: that the discrimination can be objectively justified. Objective justification would require your employer to demonstrate that either the treatment or the provision criterion or practice is a proportionate means of achieving a legitimate aim.

Harassment

Race harassment occurs where a person engages in unwanted conduct related to race and this conduct has the purpose or effect of violating your dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for you.

When determining whether the conduct has such an effect, both your subjective perception and whether it is objectively reasonable for such conduct to have that effect will be factors to consider, along with the other circumstances of the case.

See the harassment link for more information.

Victimisation

The victimisation provisions in the Equality Act protect employees from being discriminated against for bringing proceedings under the Act itself or giving evidence in relation to the act.

Making a claim

If you think you may have been discriminated against, you can submit questions to your employer by way of a questionnaire. This is a statutory procedure (set out in s. 138 of the Equality Act) although the questions need not be set out in the form prescribed in the act. Whilst it is not compulsory for your employer to reply to the questionnaire, if they fail to do so an employment tribunal could draw inference from this.

Discrimination Questionnaires are in fact due to be abolished in either October 2013 or April 2014 as section 66 of the Enterprise and Regulatory Reform Act will repeal section 138 of the Equality Act 2010. The argument behind the abolition of questionnaires is that they do not promote early settlement as much as may be expected and collating the information can be onerous. This could disadvantage employees, however, as without the questionnaires; you may have to initiate formal proceedings to seek documentation from your employer.

Before submitting an employment questionnaire, it may be advisable to consider raising a formal grievance to see if there is a way of resolving the matter internally before considering whether to pursue an employment tribunal claim.

You have 3 months less one day from the date of the last act of discrimination to bring a claim, although acts occurring prior to this 3 months can be a factor in such a claim if they are part of a continued course of conduct.

If you were to be successful in a discrimination claim, the tribunal could make one or a combination of the below awards:

  • Compensation
  • A declaration of the rights of the parties.
  • A recommendation with regard to the steps your employer should take to reduce the adverse effect of the discrimination

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