first_img Comments are closed. Related posts:No related photos. Previous Article Next Article In this series, we delve into the XpertHR reference manual to find essentialinformation relating to one of our features. This month’s topic…Recent developmentsAmendments to the Race Relations Act 1976 came into effect on 19 July thisyear. Intended to implement provisions of the European Council Race and EthnicOrigin Directive (2000/43/EC), the amendments introduce changes relating todiscrimination on the grounds of race, or ethnic or national origin, but do notapply to discrimination on the grounds of colour or nationality, to which thepre-amendment provisions of the Act continue to apply. There has been criticism, including in the House of Lords’ debate on thelegislation, about the resultant inconsistencies in the race legislation butthe Government has not indicated an intention to enact the primary legislationthat would be required to extend the new provisions to discrimination ongrounds of colour or nationality. Included in the amendments are express provisions stating that acts ofdiscrimination (including discrimination in the form of victimisation) orharassment on grounds of race or ethnic or national origins committed after anemployment relationship has ended will be unlawful where they arise out of, andare closely connected to, the previous relationship. Occupational qualificationsEmployers have a defence to a race discrimination claim in relation torecruitment, promotion, transfer or training for employment or dismissal wherebeing of a particular racial group is a genuine occupational requirement forthe job. But following the latest amendments, there are separate exceptions applyingto discrimination on grounds of race or ethnic or national origins anddiscrimination on grounds of colour or nationality. As far as discrimination on grounds of race or ethnic or national origins isconcerned, employers will have a defence to a claim in relation to recruitment,promotion, transfer or training for employment or dismissal where: – Being of a particular race or ethnic or national origin is a genuine anddetermining occupational requirement – It is proportionate to apply that requirement in the particular case – Either the person to whom the requirement is applied does not meet it, orthe employer is not satisfied, and in all the circumstances it is reasonablefor it not to be satisfied, that the person meets it. The exception for discrimination in relation to recruitment, promotion,transfer or training for employment (but not for dismissal from employment)that used to apply to discrimination on any racial grounds now applies only todiscrimination on grounds of colour and nationality. In relation to discrimination on grounds of colour or nationality, the RaceRelations Act 1976, section 5 sets out an exhaustive list of genuineoccupational qualifications (GOQs), namely that: – The job involves participation in a dramatic performance in a capacity forwhich a person of that racial group is required for reasons of authenticity – The job involves participation as an artist’s model or photographic modelin the production of a work of art or visual image where a person of thatracial group is required for reasons of authenticity – The job involves working in a place where food or drink is provided to andconsumed by members of the public or a section of the public in a particularsetting for which, in that job, a person of that racial group is required forreasons of authenticity – The holder of the job provides persons of that racial group with personalservices promoting their welfare and a person of that racial group can mosteffectively provide those services. The personal services GOQ is the one that has caused most case law and inpractice is the most important exception. Issues may arise as to whether anypersonal service is involved in the job and whether a person of a particularrace can most effectively provide it. Racial harassmentThe new amendments also specifically prohibit harassment on the grounds ofrace, or ethnic or national origin. Harassment on grounds of colour ornationality will constitute unlawful race discrimination only if the individualis subjected to less favourable treatment on grounds of colour or nationalityand is subjected to a detriment. Harassment is defined by the Race Relations Act 1976, section 3A as beingwhere, on grounds of race or ethnic or national origins, a person engages inunwanted conduct that has the purpose or effect of: – Violating another person’s dignity or – Creating an intimidating, hostile, degrading, humiliating or offensiveenvironment for that person. Where there is no intention to violate the other’s dignity or create such anenvironment, the behaviour is to be regarded as having the effect of doing soonly if, having regard to all the circumstances, including in particular theperception of the other person, it should reasonably be considered as havingthat effect. Harassment on the grounds of colour or nationality (but not on grounds ofrace, ethnic or national origins) will be unlawful race discrimination if theindividual is subjected to a detriment and the treatment is less favourabletreatment on grounds of colour or nationality. The Employment Appeal Tribunal (EAT) in Thomas and another v Robinson [2003]IRLR 7 EAT, when considering the law that now continues to apply only todiscrimination on grounds of colour or nationality confirmed the need to showthat the employee has been subjected to a detriment as well as being subjectedto less favourable treatment on racial grounds. It said that harassmentinvolves two elements: the targeting of the person being harassed and thecausing of distress to the target. An employment tribunal considering whether an employee has been discriminatedagainst by the use of racist language should consider both whether the languagehas been used and whether the employee has suffered a detriment as a result. Inmany cases, it may be easy to establish detriment, but it should not beassumed. Undesirable as it may be, there are some work environments in which racialabuse is given and taken in good part by members of different ethnic groups. In such cases, the mere making of a racist remark could not be regarded as adetriment. Harassment may occur over a period of time through a series of relativelyminor incidents of harassment or it may occur through one blatant incident. Ineither case, the complainant will have to show that his or her workingenvironment has been affected in such a way and to such a degree as to resultin a detriment. Action point checklist– Follow the same procedure for allemployees in the recruitment process when checking entitlement to work in theUK. – Take steps to prevent harassment by employees or thirdparties. – Ensure that any dress or appearance requirements that have adisproportionate impact on a racial group can be justified. – Ensure that workers who have been involved in a racediscrimination claim are treated in the same way as if they had not. – Ensure that managers are aware of the issues that could arisein relation to race discrimination claims. – Ensure that harassment claims are fully investigated and takedisciplinary action where claims have been substantiated. – Do not stipulate requirements or conditions likely to have adisproportionate impact on one racial group in comparison to others not withinthat racial group. – Do not place employees at risk of facing discriminatory actsby third parties. Questions and answersHow are employees protected from racial discrimination?The Race Relations Act 1976 protects employees from unlawfuldiscrimination on the grounds of their race or ethnic background. However, theterm ’employee’ in the Act has a wider definition than that contained in otheremployment legislation, and includes self-employed and contract workers.Are employers liable for anyracial discrimination suffered by employees?Employers are directly liable under the Race Relations Act1976, section 4 for discriminating on racial grounds in respect of recruitment,terms and benefits during employment or dismissal. An employer is also liablefor the discriminatory acts of its employees done in the course of theiremployment, whether or not those acts are done with the employer’s knowledge orapproval. Employers may also be liable for acts of discrimination committed bytheir agents.Can an employer defend itselfagainst accusations of racial discrimination on the grounds that it needed toimpose particular conditions that were interpreted as discrimination?In direct discrimination claims, an employer is not able todefend the claim on the basis of justification, as the defence of justificationis available in relation to only indirect discrimination. Positivediscrimination is generally unlawful under the Race Relations Act 1976,although limited forms of positive action are allowed in relation to, forexample, charities.What are the elements thatconstitute a claim of indirect race discrimination?Indirect discrimination is where a provision, criterion orpractice is applied equally to everyone but this disadvantages or woulddisadvantage people of a particular race or ethnic or national origin comparedwith other people and the employer cannot show the application of the provision,criterion or practice to be a proportionate means of achieving a legitimateaim. Or where the employer applies a condition or requirement that it cannotjustify, and with which people of a particular colour or nationality find itmore difficult to comply than those of another colour or nationality, sosubjecting them to a detriment. The courts must decide between the employer’sneed to impose a requirement or condition, or apply a provision, criterion orpractice, and the discriminatory effect.Are there any circumstances inwhich an employer can insist on recruiting from a particular racial group?Yes, under certain limited circumstances employers have adefence to a discrimination claim where being of a particular racial group is agenuine occupational requirement or qualification for the job. Race discriminationOn 1 Oct 2003 in Personnel Todaylast_img