How should you handle racial discrimination in the workplace?

What is racial discrimination?

Racial discrimination in the workplace refers to discriminatory behaviours to an individual or a group based on their race or skin colour. This can be conducted either by the employer or a colleague within the organisation. It can also be direct or indirect behaviour such as harassment or victimisation. No one should be discriminated against and employees are protected by legislation. Race is one of the nine protected characteristics under the Equality Act (2010).

Discrimination based on race also includes other elements such as:

• Colour
• Ethnic origin
• National origin
• Nationality

An example of racial discrimination from an employer could be if a senior member of staff lets someone’s race/skin colour affect their decision of who receives a job, promotion or other employment benefit.

Racial discrimination by a colleague or colleagues could amount to harassment, where they create an atmosphere that makes the victim feel uncomfortable. This may result in the employee feeling bullied, offended, intimidated or humiliated.

What the law says about racial discrimination in the workplace

The law aims to prevent unlawful treatment of staff in the workplace, and employees are protected under the Equality Act (2010), so it is illegal to discriminate against people at work. The legislation is in place to protect people from discrimination, harassment and victimisation and encourages employers to act fairly. By way of good practice, employers should also have clear policies in place to ensure unwanted conduct does not happen.

If an employee feels they have been subject to discrimination, or who have witnessed discrimination of a colleague at work, they should be able to raise this with their employer and have assurances that necessary actions will be taken. It is worth noting that both the employer and their employees can be held responsible and liable for acts of discrimination.

In some cases, discrimination based on race can be seen as harassment which is defined under the Equality Act 2010 (s26) as “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual”.

Protection also extends to victimisation which may take place following a complaint about discrimination and employees have a right not to be treated badly as a result of complaining about racial discrimination that has taken place whether against them or they have witnessed this to another.

What are a business’s responsibilities when it comes to managing discrimination?

A survey commissioned by the Trade Union Congress (TUC) found that over 70% of ethnic minority workers say they have experienced racial harassment at work within the last five years, and around 60% state that they have been subject to unfair treatment by their employer.

It is imperative that businesses firstly understand what racial discrimination is, how it may be identified and what training can be put in place to help staff understand the severity of it. Employees should also be made aware of their rights and their responsibilities by way of a company policy, outlining discrimination generally and providing any important information. Furthermore, businesses should have both grievance and disciplinary procedures in place, together with readily available guidance.   

In the event that bullying takes place, an employer should appropriately investigate and enforce disciplinary action where necessary. It should also offer training to those involved. Bullying itself is not against the law but harassment is, especially if the unwanted behaviour is related to race. Anti-bullying and harassment policies can and should be put into place to help prevent these problems. ACAS has produced a booklet for employers, including advice on setting up a policy as well as how to recognise, deal with and prevent bullying and harassment before it escalates.

What are an employee’s rights if they have experienced discrimination?

In most circumstances, an informal approach initially to resolve any issues would be advised. A form of mediation which could prevent the issue becoming inflammatory can often help. If this is not successful or not appropriate, employees should speak to their manager, human resources (HR) department and/or trade union representative.

If a further escalation point is needed, an employee may make a formal complaint using their employer’s grievance procedure. The grievance process should be sufficiently robust as to resolve these matters in the workplace. However, if the harassment continues, an employee can take legal action via ACAS Early Conciliation and thereafter by way of an employment tribunal claim.

What if an employee takes action?

An employee can contact ACAS Early Conciliation in an attempt to resolve the matter. The conciliator is an independent party who will see if the matter can be disposed of through open communication and mediation between the affected parties. If Early Conciliation is unsuccessful an employee may take the matter to a tribunal. This is a formal claim within an employment tribunal and is typically less formal than going to court but it can be a lengthy and stressful process. Employers should note that the decisions will be noted on public record and can have reputational repercussions if a claim is upheld.

Tribunals can:

• Make the employer pay compensation
• Recommend the employer does something, such as change the company policy or give a reference. This will not be an obligation but only a recommendation that the employer action
• Make a statement saying that the employer has discriminated against the employee – by explaining how the law has been broken in the particular case.

When it comes to issues of racial discrimination, fair treatment is a moral and legal duty for employers. They have a responsibility to investigate and respond to any issue they become aware of, as well as take all reasonable measures to protect employees from harassment. Education, by way of training, to all in the organisation around policies and expected behaviours is key in preventing racial discrimination in the work environment.

By Karen Holden Founder of A City Law Firm