Legal Q&A: Amendments to the Race Relations Act

Sarah Gregory of the Employment Lawyers Association offers guidance on the amended RRA, which came into force on 19 July this year.

Q What changes have resulted from the amended Race Relations Act (RRA)?

A The amended RRA, which came into force on 19 July, introduced a new definition of indirect discrimination. Under the new definition, indirect discrimination occurs when a "provision, criterion or practice" of the employer is applicable to all staff, but puts a person of one racial or ethnic group at a particular disadvantage when compared with other employees from different racial or ethnic groups.

An employer has a defence if he can show that the provision is a proportionate means of achieving a legitimate aim. The new wording is wider than that contained in the existing RRA (which will continue to apply to discrimination on grounds of colour or nationality) and might include employer preferences.

Q So will it be much easier for employees to found a claim?

A In some ways, yes. In the existing RRA, an employee must show they have suffered a "detriment" because they cannot comply with the requirement or condition. However, the new wording of "disadvantage" may be a wider (and simpler) concept, and the worker no longer has to establish that they cannot comply with the requirement.

The new definition also means it may no longer be essential for staff to use statistics to establish indirect discrimination.

Q How can an employer prove a particular practice is justified?

A If the provision can be shown to be a proportionate means of achieving a legitimate aim.

The new wording doesn't exactly replicate that of the EU directive (from which the amendments derive), which contains the familiar test of objective justification (a legitimate aim where the means of achieving it are appropriate and necessary).

An example is a recruiter of telesales staff, who states that preference will be given to articulate English speakers. Clearly, this can amount to indirect racial discrimination. The employer must prove justification, irrespective of the race of the person to whom it is applied.

Under the new rules, the employer arguably need not demonstrate that the legitimate means to achieving the aim are necessary.

On the face of it, this is an easier test to satisfy, but it remains to be seen whether the new requirement of proportionality is regarded as such by tribunals, or whether, in practice, they will take account of the directive's wording, and require the provision to be appropriate and necessary.

Q Will the new definition of harassment make any difference?

A Possibly not. For the first time, the legislation defines racial harassment - although UK courts have recognised harassment as a form of discrimination for many years. The new definition of harassment is wide enough to cover conduct which the employee believes to have caused harassment (a subjective test), provided that his belief is reasonable in all the circumstances (an objective test).

An employer can therefore be liable for "unintentional" harassment. That said, the balancing act between an employee's belief and what is a reasonable belief in all the circumstances, is not unlike the one a tribunal currently performs.

Q Will it be easier for a worker to succeed?

A Under established UK case law, once an employee has described a situation which could be discriminatory, the burden passes to the employer to provide an adequate explanation. However, the tribunal is not currently obliged to infer discrimination in the absence of an adequate explanation from the employer.

This may well change. The new wording imposes an obligation on the tribunal to infer discrimination, where the employee has established facts which point to discrimination and where the employer fails to provide an adequate explanation.

Q Are there any other important differences?

A Yes; the amended RRA provides that post-employment discrimination is covered (although the House of Lords has just ruled that all three discrimination statutes can be interpreted to cover post-termination acts).

Employers will have to ensure that post-termination matters (for example, appeal hearings after employment has ended, or references supplied at any time after termination) are dealt with scrupulously fairly and in a non-discriminatory way.