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Race discrimination

Updating author: Tina McKevitt

Summary

  • The law relating to race discrimination is governed by the Equality Act 2010. The core provisions of the Act, which repealed the Race Relations Act 1976, came into force on 1 October 2010. While the Equality Act 2010 largely consolidated previous discrimination legislation, it also: harmonised protection against harassment, so that it includes conduct related to a protected characteristic (removing the need for the characteristic to be that of a particular person); removed the requirement for a comparator to establish victimisation; and removed the anomalies that previously existed in relation to the burden of proof. It is assumed that many of the principles that were established in the extensive body of case law that was decided under previous discrimination legislation will remain relevant in interpreting the provisions of the Equality Act 2010. For this reason such cases have been included in the body of this section together with an indication of the legislation under which they were decided.
  • Race is a "protected characteristic" under the Equality Act 2010 and, under the Act, means colour, nationality or ethnic or national origins. (See Definition of race)
  • The definition of "employee" for the purposes of protection against race discrimination is wider than that contained in other employment legislation. (See Who is protected?)
  • The employer's liability is not limited to its own actions. There are circumstances in which the employer will be liable for the acts of others. (See Who is liable?)
  • The Equality Act 2010 prohibits direct discrimination (which includes discrimination by association and discrimination by perception), indirect discrimination, victimisation and harassment. (See Prohibited conduct)
  • It is unlawful to discriminate in the context of employment or vocational training including, in particular circumstances, after the working relationship has ended where the prohibited conduct arises out of and is closely connected to that relationship. (See Prohibited conduct in the employment context)
  • Direct discrimination occurs where, because of the protected characteristic of race, person A treats person B less favourably than person A treats or would treat other persons. The less favourable treatment can relate to the person's actual or perceived race, even where the perception is wrong, or to the person's association with someone who has, or is perceived to have, the protected characteristic. (See Direct discrimination)
  • Indirect discrimination is where person A unjustifiably applies to person B, to B's disadvantage, a provision, criterion or practice that A applies or would apply equally to persons not from the same racial group as B, but which puts, or would put, persons from the same racial group as B at a particular disadvantage when compared to other persons. (See Indirect discrimination)
  • An employer may be able to justify the discriminatory result of a provision, criterion or practice by establishing that it is a "proportionate means of achieving a legitimate aim". (See Justification)
  • Harassment is where person A engages in unwanted conduct related to the protected characteristic of race that has the purpose or effect of violating person B's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her, or is reasonably considered by B to have this effect even where it was not intended. (See Harassment)
  • Under the Protection from Harassment Act 1997, an employer may be vicariously liable for a course of conduct by one of its employees that amounts to harassment under the Act. (See Protection from Harassment Act 1997)
  • Victimisation is where person A subjects person B to a detriment because B has done, or A believes that B has done, or may do a "protected act". (See Victimisation)
  • Employers may in certain circumstances lawfully restrict work to people of a particular race. (See Occupational requirements)
  • Exceptions from unlawful race discrimination exist in relation to various matters including national security and crown employment. (See Other exceptions)
  • Terms that constitute, promote or provide for treatment that is prohibited under the Equality Act 2010 are unenforceable. It is not possible to contract out of the Act's provisions except by way of a conciliated settlement or a valid compromise contract. (See Terms)
  • Employers may, in certain circumstances, take measures to enable or encourage people who share a particular protected characteristic to overcome a disadvantage that the employer reasonably thinks is suffered by people with the same protected characteristic. Employers may also, in defined circumstances, appoint or promote a person with a protected characteristic in preference to another person who does not have the protected characteristic. (See Positive action)
  • An occupational pension scheme must be taken to include a non-discrimination rule. (See Pensions and other employment benefits)
  • Public authorities have a general duty to eliminate discrimination, harassment and victimisation; advance equality of opportunity between persons who share a protected characteristic and those who do not; and foster good relations between persons who share a protected characteristic and those who do not. (See Public authorities)

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