Employment Law Explained

Discrimination on Grounds of Race or Religion or Belief

The Race Relations Act 1976 makes it unlawful for an employer to discriminate against an employee based upon his/her race, colour, ethnic or national origin or nationality. The Race Relations Act extends not only to employees, but also workers under a contract and partners in a Partnership (where the partnership consists of six or more partners). In addition, trade unions, trade or professional associations, employment agencies and other organisations must also observe the provisions of the Race Relations Act 1976.

Discrimination can occur where a decision affecting the employee is based on an individual's colour, race, nationality or ethnic origin or national origin. With effect from 2nd December 2003, this is extended to cover, in addition, religion or belief under the Employment Equality (Religious or Belief) Regulations 2003.

Direct discrimination
This occurs when, on racial grounds or on the grounds of religion of belief, one person treats another less favourably than he or she would treat other persons.

In a race discrimination claim, the comparison must be between the person of the racial or ethnic group and a person who is not of that same ethnic or racial group, but whose circumstances are the same, similar or not materially different to those of the complainant. This person is called "a comparator". In general terms, the test is whether, but for the individual's racial, or national origin, colour, religion or belief, they would not have been subject to that treatment.

There is no justification Defence available to a claim of Direct Discrimination.

There are 2 applicable burdens of proof:

In terms of claims concerning race, ethnic or national origin - where the Claimant has proved facts from which the Tribunal could, in the absence of an adequate explanation by the Respondent, conclude that the Respondent had committed an act of discrimination the burden shifts to the Respondent to prove he did not commit that act. If the Respondent are unable to prove they did not commit that act then the Tribunal must uphold the complaint. This is called the shifting burden of proof.

In terms of claims on the grounds of colour or nationality, firstly one must identify the acts complained of which are said to be discriminatory and to establish if they did in fact occur; it is necessary to show the complainant has been treated less favourably than the discriminator treated or would have treated others of a different racial group or religion in the same or not materially different circumstances; If there is different treatment, was that on racial grounds, religion or belief. Was race or religion the effective cause (unlike shifting burden applied as above); is there direct evidence the act was done on racial grounds or religion or belief ? If not, what is discriminators explanation for les favourable treatment; can the Tribunal look at all the circumstances and infer discrimination ?

Indirect discrimination (2 tests)
As regards Colour / Nationality, this occurs where a condition or requirement is imposed which applies or would apply equally to person not of the same racial ground and has a disproportionate impact on a particular racial group so that a considerably smaller proportion of members of that group can comply
than those outside it, and it cannot be objectively justified on some basis other than colour, race, nationality, ethnic or national origins.

With effect from 19 July 2003, regards race, ethnic/national origins, nationality, religion or belief the definition of indirect discrimination was extended to include application of a "provision, criterion or practice" which would apply equally to person not of the same race, ethnic, national origins, religion or belief as the other but which puts the person at a particular disadvantage when compared with others and which cannot be shown to be a proportionate means of achieving a legitimate aim.

Harassment
With effect from 19 July 2003, a new definition of harassment is introduced. Where on the grounds of race or ethnic or national origins or religion or belief he/she engages in unwanted conduct which has the effect of violating a person's dignity or creating an intimidating,hostile, degrading, humiliating oroffensive environment to him/her. This does not apply to nationality or colour where Direct Discrimination must be relied on.

Victimisation
This occurs when a person is treated less favourably than others because he or she has taken action under or by reference to the Race Relations Act or The Regulations.

Defence
A defence is available for an employer who can show that a genuine occupational qualification or requirement exists for the job.