An Overview of Race Discrimination under
the Equality Act 2010
Institute for Employment Rights
Rakesh Patel
Thompsons Solicitors
Congress House, London
Introduction
Purpose of the Equality Act
- harmonise, simplify and strengthen
discrimination legislation
Protected Characteristics (s.4 and 9)
• Race means Colour, Nationality, Ethnic or National
Origin (s.9)
Nationality - can be acquired by birth or by other means.
Akin to citizenship.
National Origin - means more than nationality.
Ethnic origin - Mandla v Dowell Lee - a long shared
history and a cultural tradition of its own.
Who is Covered? (Part 5)
- Employees, workers, agency workers, contract workers,
apprentices
- Protection applies from day one of employment
- Job applicants (nb Keane –v- Investigo & ors EAT
0389/09).
- Post Employment Discrimination
Direct Discrimination s.13
• A person (A) discriminates against another (“B”) if,
because of a protected characteristic (A) treats (B) less
favourably than A treats or would treat others.
• Associative & Perception Discrimination
Weathersfield v Sergeant [1999]
Serco v Redfern [2006]
Direct Discrimination s.13
• TEST (1) whether less favourable treatment (Comparators)
(2) whether the less favourable because of race
• Motive irrelevant. Amnesty Int v Ahmed [2008]
• Race need not be sole reason for treatment. Owen & Briggs v
James [1982]
• Burden of Proof
• Vicarious Liability – act/omission “in the course of employment”.
Jones v Tower Boot Co Ltd [1997] ; Sidhu v Aerospace Composite
Technology Ltd [2000]
Indirect Discrimination s.19
• A person (A) discriminates against another (B) if (A)
applies to (B), without justification a PCP which is
discriminatory in relation to a relevant protected
characteristic of (B)
- B must show that it does or would put persons with whom
(B) shares the characteristic at a particular disadvantage
when compared with persons who do not share it and it
puts or would put B at a disadvantage.
Indirect Discrimination
• The same definition applies to colour and nationality as
well as ethnic or national origin
• Examples - Hussain –v- Saints Complete House
Furnishers [1979] IRLR 337
• Osborne Clarke Services v Purohit [2009] IRLR 341 –
Harassment s.26
• A person “A” harasses another, “B” if:(A) engages in unwanted conduct related to a relevant
protected characteristic and the conduct has the purpose
or effect of
• Violating “B’s” dignity; or
• Creating an intimidating, hostile, degrading,
humiliating or offensive environment for “B”
Harassment s.26
• Associative and perception harassment
• Third Party Harassment
Employer only liable if aware of the harassment and on
at least two occasions
Victimisation s.27
• A person (A) victimises another, (B) if:– (A) subjects (B) to a detriment because:“B’ does a protected act, or
“A” believes that “B” had done or may do a
protected act
Time limits (s123 and 129)
1.
Within 3 months of discrimination.
2.
ET has discretion for late claim if just and equitable
3.
Continuing Discrimination
Remedies
ET can order:
•
Declaration
•
Compensation
•
Recommendation
Public Sector Duties (s149)
• Comes into force on 6th April 2011
• General Duty
• To eliminate unlawful discrimination,
•
• To Advance equality of opportunity
• Foster good relations
Public Sector Duties (s149)
What are the Specific Duties?
1. By 31st July 2011 and annually thereafter publish
information to show compliance with general duty.
•
Information to include effect policies and practices have
had on people with protected characteristics.
•
bodies of 150 employees or more the information will
need to include the effect polices have had on their
workforce.
Public Sector Duties
2. Prepare and publish equality objectives
• By 6 April 2012 and every 4 years thereafter, prepare
and publish equality objectives that it reasonably thinks it
should achieve to meet aims of the general equality duty.
• Details of the engagement that it undertook, in
developing its objectives
Positive Action in Recruitment (s 159)
• not unlawful to recruit or promote a candidate of equal
merit to another candidate, if candidate:
has a protected characteristic that is underrepresented in
the workforce; or
that people with that characteristic suffer a disadvantage
connected to that characteristic.