Discrimination in the workplace: protecting race

What matters

What matters next

In our second article in the series focusing on discrimination in the workplace, we consider race, one of the nine protected characteristics under the Equality Act 2010, including what the term covers and what issues commonly arise in the workplace.

What is race?

Race is defined in the Equality Act 2010 as including colour, nationality and ethnic or national origins. This definition is non-exhaustive and can include other aspects such as language (although arguably that is merely an extension of nationality or ethnicity) and caste. 

  • Colour is not specifically defined but is considered self-explanatory.
  • Not to be confused with national origins, nationality is generally considered to refer to citizenship of a particular country. The Equality and Human Rights Commission (EHRC) define it as a “specific legal relationship between a person and a state through birth or naturalisation”. 
  • The EHRC explain national origins as that which has “identifiable elements, both historic and geographic, which at least at some point in time indicate the existence of a nation”. This might include those who see themselves as English or Scottish rather than British, England and Scotland historically being separate independent nations. This can also include national origins of nations that no longer exist (such as Czechoslovakia). 
  • Ethnic origins can be interpreted widely and can encompass religious and cultural differences as well as what might be considered strictly racial differences. An ethnic group may share history, traditions, a geographic region or even be united because of oppression. Some religious groups can also be defined as ethnic groups. For example, both Sikhs and Jews have been treated in several cases as an ethnic group, and therefore could potentially bring discrimination claims on grounds of both race and religion. The courts have also held that Romany Gypsies and Irish Travellers are protected as ethnic groups for the purposes of race discrimination. 

Common issues faced by employers

Recruitment and right to work checks 

A policy not to accept job applications from non-UK nations will be unlawful as indirect discrimination on the grounds of race based on nationality, unless it can be objectively justified, as excluded nationals will clearly be disadvantaged by any such policy. Recruitment selection should be based purely on merit and not on where the applicant is from or what their race is. 

Right to work checks are required to be carried out prior to the commencement of employment, regardless of the nationality of the individual. Employers should take care not to select only migrant or non-UK workers for these checks. Special care should also be taken not to discriminate when carrying out right to work checks by making any assumptions about a person’s right to work or their immigration status because of their race (whether perhaps in the form of a comment or change in the way a right to work check is carried out).

However, if an individual does not have the requisite right to work in the UK, then it will not be unlawful to refuse to employ them. There is also a further exception in cases where national security may be an issue or if there is a statutory embargo on hiring individuals from certain states for certain roles. This might happen, for example, in the armed forces or those that are required to work on certain government sites.  In such cases, it will not be discriminatory to reject such applications (so long as it is dealt with appropriately and is properly in compliance with a relevant enactment or similar). 

Language requirements

This can often be a tricky area to navigate as employers will need to find the right balance if they want to avoid discrimination where there are specific language requirements in the workplace. Simply telling employees that they must speak English at all times, for example, could be indirectly discriminatory against those whose first language is not English. 

Where a specific language is required to be spoken in the workplace, the employer must be able to justify this with a genuine business reason. For example, there might be a requirement to speak a common language in a busy factory for health and safety purposes, or employees may need to speak a particular language to communicate with overseas business partners. 

If there is a genuine business reason, then the implementation of the language requirement must also be proportionate. For example, limiting any such requirements to working time. It is unlikely to be proportionate to require all employees to speak a particular language when they are on a break or otherwise on their own time.

There must also be balance and consideration for those who might feel left out if they are unable to understand what is being said around them. Employers should take steps to resolve any such feelings of isolation in order to avoid inadvertently discriminating against those individuals because they are unable to speak a particular language.

Harassment

Racial harassment occurs where an employee is subjected to unwanted conduct related to race which has the purpose or effect of violating their dignity or creating a hostile, intimidating, degrading, humiliating or offensive environment for them. Conduct could be because of someone’s race, such as shunning a co-worker because they are black, or could be related to race, for example telling jokes about Asian people that colleagues find offensive. Harassment need not be targeted at an individual but could include a general workplace culture where, for example, it appears that the making of race-related comments is tolerated, such as the use of nicknames or teasing. It doesn’t matter that the intention was not to cause offence if the conduct has that effect.

Employers will be liable for acts of harassment by their employees against other employees unless they can show that they have taken all reasonable steps to prevent the harassment from taking place. This could include, for example, giving clear guidelines about what is acceptable behaviour at work, and training managers on how to deal with instances of harassment appropriately. 

It is a real issue

Pearn Kandola, a UK-based D&I consultancy, published a report on Racism at Work in the UK (2021) comparing the results of a 2018 survey to a more recent 2021 survey to see if there had been any changes to reduce workplace discrimination. 87.8% of respondents in 2018 believed that racism existed in the workplace and this figure increased slightly in 2021.  

Professor Binna Kandola OBE, Senior Partner at Pearn Kandola, explained “In spite of several significant events over the last few years, including the pandemic and subsequent global lockdown, as well as the extrajudicial killing of [black American] George Floyd in the US in 2020, very little has changed when it comes to discussing and promoting racial equality in the workplace.”

The survey also asked respondents whether they were comfortable discussing racism in the workplace, whether they would recognise different scenarios of racism and whether organisations were taking action and how. Professor Kandola offered his take on the research, “We are still as wary, if not apprehensive, about conversations around race as we ever were. The complacency around the topic which existed prior to 2020 could well reinstate itself if we do not take actionable steps.”

Whilst the survey showed there were positive indicators that organisations have been taking steps to improve the situation in the workplace, there is still a long way to go. The most frequently cited theme was that organisations were conducting more training and raising awareness. Policies were also being updated to make them more inclusive and to make it easier to report racism in the workplace. However, the results show more is needed to promote racial equity at work.

Kandola concluded “if we are to make progress on this, it will be achieved through discussion. It’s time for all of us to take a good, hard look at how we perceive racism at work, as well as inclusion as a whole. We need to continuously talk about race at work, listen to the experiences of our colleagues, and then take action based on what we’ve heard.”

Concluding thoughts

Steps should be taken to encourage discussion and education around racism and the very real issues that exist but are quite often overlooked in the workplace. Training should be given to help with those managing employee relations issues so that these can be handled appropriately, whilst reviewing and refreshing policies and procedures will also help to promote diversity and inclusion as will giving employees the opportunity to talk about their experiences and influence change.

Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2024.

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