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Identifying race discrimination in the workplace

Written by Will Burrows on Tuesday, 22 September 2020. Posted in Commercial law, Legal

Employment solicitor Will Burrows explains how race discrimination comes in many different shapes and sizes.

Identifying race discrimination in the workplace

Employment solicitor Will Burrows explains how race discrimination comes in many different shapes and sizes.

As a senior employment solicitor of more than a dozen years, I have dealt with numerous and various forms of race discrimination in the workplace. Some are obvious and easy to spot, others are more hidden, but just as destructive to the victim. In this feature, I will take you through some of the most common examples of race discrimination which rear their ugly heads in the workplace. When I mention the term ‘Race’, I am referring to a person’s colour, nationality and ethnic or national origins. Hopefully, this will assist you in the identification of this terrible but frequent practice.

Broadly speaking, there are two main areas where race discrimination at work is currently an issue. First, there is ‘Direct Race Discrimination’ against a person: This is where someone is treated less favourably than others because of their race, or perceptions about their race. Secondly, there are often concerns with ‘Harassment’, where someone is harassed because of their race.

Other less common issues, which do crop up from time-to-time, include ‘Victimisation’ and ‘Indirect Racial Discrimination’. This can include an employee being victimised for making a complaint about race discrimination or even someone who tries to help another person suffering from discrimination. ‘Indirect Racial Discrimination’ takes place when a company policy puts BAME (black, Asian and minority ethnic) employees at a disadvantage.

Identifying when race discrimination takes place is not always that obvious, especially in a white-collar environment where this type of behaviour is rarely overt. BAME employees tend to be employed on a ‘non-discriminatory’ basis by medium to large organisations. In this kind of environment, individuals are usually judged on their merits and employers are increasingly recognising the benefits of institutional diversity.

As a lawyer who specialises in race discrimination, I usually find most issues concern those who are already long established employees. In other words, they may have been working with the same company for a number of years. Quite often, it can be a BAME employee challenging authority or someone who is perceived to be challenging authority. The person whose authority is being challenged is invariably white, middle-class and a middle manager.

This can develop when someone complains about a person’s bonus, or treatment of a colleague, or even when applying for promotion. Whistleblowing, regulatory compliance and concerns over performance, are other areas where this can lead to issues.

During the past five years at Monaco Solicitors, I have witnessed all of these as being the starting point for triggering race discrimination claims. And, most important of all, it may surface when a BAME employee feels they are being treated differently from a white colleague, when perceived to be challenging the authority of a white middle manager.

How issues develop

In our experience, it usually begins behind closed doors when senior colleagues discuss a case. Quite often, senior colleagues find common ground about a topic and close ranks. At this point, one of the group makes a comment which can be viewed as being racist in nature. The employee might feel he or she is being singled out or treated slightly differently from other employees. It’s usually very subtle and may not even be intentional, but senior colleagues are influenced by their discussions with each other.

In such circumstances, the employee is likely to subtly enquire about why their employer’s behaviour towards them has shifted. Alternatively, they may ignore this unwanted development in the hope it was a one-off but sometimes it gets worse. Further incidents, of less-favourable treatment, start to occur. The employee may even hear comments, regarding race, directed towards them by a colleague. 

For example, these may include generic discussions which are often excused as being stereotypical at best, and downright racist at worst. Several cases we have been involved with have included the use of the ‘N’ or ‘P’ word, spoken in ‘general conversation’ in offices or sometimes directly towards an employee.

Those who use this sort of language often consider they are making a light-hearted comment, or a joke, rather than a malicious statement. But this is another example of harassment on the grounds of race. And if an employee brings this to the attention of a manager, they may face victimisation for raising this complaint in the first place.

In recent years, we have witnessed employees being denied promotion due to their race, or placed on a performance management procedure simply because they have raised a complaint about their treatment.

They have even had their email accounts investigated, as employers sought to find evidence of misconduct against them, while others were denied their employment rights or had bonuses withdrawn. 

Legal advice

If this happens, it is vital the employee seeks legal advice. We would strenuously advise employees to seek the guidance of an employment law solicitor who is an expert in race discrimination employment law.

We would also recommend making an application under the General Data Protection Regulation (DSAR). This allows the employee to discover what information a company may hold about them. In many instances, this will uncover important evidence regarding racial discrimination and victimisation.

The timing of a request is often key, as it can be very technical, and more so when working for large organisations. The failure of a company to deal properly with a DSAR, in a race discrimination case, could lead to further complaints of less favourable treatment and victimisation.

We have also dealt with employers who try to prevent disclosure by using legal devices such as legal privilege, relevance and confidentiality, in an attempt to withhold documentation that is prejudicial to their company. When starting proceedings against an employer for race discrimination, it will invariably involve the Equality Act of 2010.

Being ostracised at work, placed on performance management or having false allegations made against them, are some of the most common examples we have been involved with.

Cases of race discrimination can be divided into two scenarios. The first is where an employee suffers discrimination and wishes to raise an issue or issues with their employer but then move on. The second is where an employee has been discriminated against to such an extent, that their mental health has deteriorated and their treatment has adversely affected their future.

In scenarios such as the first example, solicitors would look to negotiate the best possible settlement for an employee’s claim. For the second, however, the employee would be strongly advised to litigate their claims to the fullest possible extent.

But how is a race discrimination case resolved? This depends on the nature of the discrimination and the term ‘no size fits all’ certainly applies. The employee’s solicitor will undoubtedly seek to achieve sufficient financial compensation. Our experience suggests that solicitors which primarily represent employers often encourage employees to settle for a lower figure than is reasonably achievable.

I have no hesitation in advising employees to engage a suitably qualified and experienced solicitor: Someone who has a decade or more of race discrimination experience under their belt.

Tips for employers

We also have a number of tips for employers to take seriously. If you are aware of race discrimination happening in your company, consider the following.

1: Investigate allegations thoroughly but also fairly. You may not want to discover that an employee has been subject to discrimination. But if this has occurred, and the company deny it, you are much more likely to end up in an employment tribunal and ultimately the media – certainly local and perhaps even national.

2: Make certain that the employee does not become the victim of retaliation or is treated differently because of the allegations. This sort of behaviour leads to further claims of victimisation.

3: Ask the employee what they are seeking regarding a resolution, and do this at the earliest possible stage. Many employers don’t ask this question and, instead, try to defend their often indefensible position.

About the Author

Will Burrows

Will Burrows is a senior employment solicitor with Monaco Solicitors. He has practised employment law exclusively for more than a dozen years. The company’s website reads: ‘Our mission is helping employees to get fair deals when leaving their jobs. We also publish our knowledge on the internet for free, so that people can represent themselves. We have had over a million visitors to our website, thanks to the quality, range and depth of employment law advice we provide. Our articles and letter templates are provided on this website free of charge.’

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