Employment law prohibits unfair treatment of employees because of their race. The Equality Act 2010 means it is unlawful for an employer to treat an employee differently and unfavourably because of his or her race, colour, nationality, ethnic or national origin.
Employment law recognises discrimination as direct or indirect, and also victimisation, and harassment. The protection covers all areas of employment including: recruitment, employment terms and conditions, pay, training, promotion and transfer, redundancy and dismissal. The Act protects all employees, short or permanent contracts, job applicants, trainees, contract workers, office holders, company directors and partners, those who are on secondment and the self-employed.
Direct and indirect discrimination
Direct discrimination is unfavourable treatment of an employee because they have particular characteristics recognised by the Act or is perceived to have characteristics or an association with people with those characteristics. In this case the characteristics are race, colour, nationality or ethnicity. The motivation of the employer is not relevant.
Indirect discrimination is where a rule, or a practice, provision or criterion, implemented in the workplace and which applies equally to all persons, puts an employee at a disadvantage, compared to other employees, because of particular characteristics that includes their race, etc. Whether the discrimination is intentional or indeed obvious is not relevant.
As with direct discrimination, it is necessary to compare the employee’s situation with other colleagues who do not share their race. Indirect discrimination can be objectively justified by an employer.
Harassment is degrading, offensive, intimidating or distressing behaviour that creates a hostile working environment and is aimed at a worker because of the worker’s race. It includes abusive language, excessive monitoring of work, excessive criticism of someone’s work, etc. An employment tribunal’s judgement about harassment is partly based on what a ‘reasonable person’ says is offensive to the dignity of the victim. Employment law also protects employees because, as stated, they are perceived to have a particular race or are associated with a person with a particular race. Also, even though an employee is not the target of harassment but is a witness to it, in an extreme case, they can nonetheless lodge a discrimination case at an employment tribunal. If an employer is made aware of such harassment and does not take reasonable action to prevent it, then they could be subject to legal action by an employment lawyer.
Victimisation is when a worker is treated badly because he or she made a complaint of discrimination under the Equality Act or if an employee was supporting a complaint or made it known they intended to support another worker making a discrimination complaint. An employment law solicitor providing employment law advice would make it clear to an employer, that they should not threaten to sack a worker who has volunteered to be a witness in a case brought under the Equality Act.
Employment law advice
The best employment lawyers would advise employers to provide training to staff to promote a culture of respect for employees of different racial or ethnic backgrounds. Some employees will have a different culture and values from those of the majority and it is good practice for employees to be sensitive to this. Employment solicitors would advise that employers should create a culture in their organisation that discourages racial stereotyping, which assumes all people of a particular race have the same characteristics. Employers should also discourage derogatory terms that refer to someone’s race and discourage ‘banter’ that could cause offence.
Languages and work rights
Employers will hire people who do not enjoy English as their first language. In such circumstances, employment legal advice would counsel that an employer should identify a particular language the organisation will use for its work. In Wales, some jobs require use of both English and Welsh. An employer can say they want to hire an English speaker but they cannot make a selection based on race or ethnicity. The best employment lawyers would advise an employer to avoid prohibiting the use of other languages in the workplace, unless they have a genuine business reason.
Employers should check that their employees have the up-to-date documents that entitle them to work in the UK. But employers should also avoid selecting employees from predefined groups, as this could be discriminatory.
Selection based on race or ethnicity is allowable in very limited circumstances. The ethnic origin of an employee may be relevant as an ‘occupational requirement’ such as the requirement for a black actor. Nonetheless, employers should put in place policies that prevent discrimination in recruitment, promotion, disciplinary action, determining pay, and in training and development.