The current law on race discrimination is set out in the Equality Act 2010 (the Act).

What is the definition of race?

Race is defined in the Act as a term which includes colour, nationality, and ethnic or national origins. It is important to note that while these factors are included in the definition of race, it is a non-exhaustive definition.

Race discrimination in the workplace

The law prohibiting race discrimination in the workplace applies to all stages of the employment relationship including recruitment, terms and conditions of employment, promotions, transfers, training and dismissal – and there are a number of ways under the Act in which discrimination may occur.

These include where an employer or prospective employer has directly discriminated against an employee or job applicant by treating them less favourably because of their race (for example, where a prospective employer refuses to offer an applicant a job because they are of a particular colour); or has discriminated indirectly against them by applying a provision, criterion or practice (such as a decision not to consider job applications from those living in a particular postcode which has a large proportion of people of a particular race) which disadvantages job applicants or employees of their race without objective justification.

Harassment in respect of race is also prohibited by the Act, as is victimisation against job applicants and employees who have taken certain steps under discrimination legislation (such as bringing a race discrimination claim).

It is also possible for an employer to discriminate against someone because of their association with someone of a particular race (for example, because they have a spouse or friend of a particular race) or because of their perceived race.

Exceptions

Discrimination on grounds of race may be permitted in certain limited circumstances. For example, in relation to direct discrimination claims, an employer may rely on the general occupational requirement exception if they can establish that only people of a particular race can do a particular job because of the nature of the job in question and can objectively justify their position. For example, the need for authenticity might require someone of a particular race for an acting job. The relevant guidance suggests that an occupational requirement must be reassessed each time a job is advertised.

There are also certain specific exemptions which relate to discrimination on the basis of nationality occurring due to compliance with particular laws: for example, immigration laws.

Positive Action

The Act also contains provisions concerning “positive action” which employers may lawfully take. These provisions apply if the employer reasonably believes that persons of a particular race suffer a disadvantage connected to their race, or have needs which are different from those who don’t share their race or that their participation or representation is disproportionately low.

Employers can take certain actions to address these problems without opening themselves up to discrimination claims brought by people who don’t share their race. For example, if an employer identifies that a particular racial group is under-represented in their workforce, it would be permissible to encourage people from that racial group to apply for vacancies.

Remedies

Where a job applicant or employee has been discriminated against on grounds of race, they must bring their complaint to the employment tribunal within three months of the discriminatory act (although that time can be extended by such a period as the tribunal thinks just and equitable or under the statutory Acas early conciliation process). If the employer is found liable, compensation without limit can be awarded.

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