Race Discrimination in the workplace can be a legal minefield through which only experts should tread, and carefully when they do so.
Here, Will Burrows, Senior Associate at Montrose Solicitors, provides a guide to the unwary through the experience of BAME (black, Asian and minority ethnic) cases of employees who have been subject to discrimination in a white collar environment, and offers advice to those facing discrimination.
Will says: I have practised employment law exclusively for twelve years and am able to draw upon extensive experience to negotiate the best possible settlement for employees who find themselves faced with the prospect of parting company from their employer.
As a ‘heads-up,’ Race, where referred to in this article includes colour, nationality and ethnic or national origins.
Claiming race discrimination
Will says, Broadly speaking, most claims of race discrimination at work are either for ‘direct’ race discrimination, where someone is treated less favourably than others because of their race, or perceptions about their race or harassment, where someone is harassed for the same or similar reasons as above.
Other types of claim exist but are less common. They include: victimisation, where someone is treated badly for making a complaint about race discrimination or for helping someone who is being discriminated against. Or, ‘indirect’ racial discrimination, where there is a policy or practice in the workplace which puts BAME employees at a disadvantage.
These days, in a white-collar world, race discrimination is rarely overt. BAME employees tend to be employed on a ‘non-discriminatory’ basis by medium to large organisations (inferring all individuals are treated the same). In this kind of work environment, individuals are either judged on the merits of their application, and/or employers increasingly recognise the benefits of and need for institutional diversity.
Regardless of an employers initial intentions it is usually once an employee has been employed for a few years that issues surface.
In our experience, the employee discriminated against will typically have a normal working relationship with their employer and other employees and will not perceive that race discrimination exists until something untoward occurs.
The event that triggers racial discrimination in a professional environment could be anything. Based on our experience, however, it’s usually where the employee seems to be challenging authority.
Perceived authority challenge
The person whose authority is perceived as being challenged is invariably a white and middle-class senior middle manager.
What they perceive as a challenge to their authority might include: raising serious issues within the business amounting to whistleblowing, highlighting concerns over the performance of a team or regulatory compliance, complaining about a bonus or the treatment of colleagues, or even applying for a promotion.
Each scenario has triggered serious race discrimination claims that Monaco Solicitors have handled over the past 5 years. Most importantly, the BAME employee appears to have been be treated differently from a white colleague when perceived to be challenging authority.
It is at that point, it seems, that the employee’s race becomes an issue, despite not being so previously.
In our experience, it usually starts behind closed doors with more senior colleagues discussing the event in which the employee was perceived to have challenged authority.
When senior colleagues begin to agree with one another about the employee’s behaviour, a closed environment is formed in which they feel comfortable discussing the employee as a person of colour.
If a colleague in that closed environment has racist views, eventually these views will be aired or intimated. That is racial discrimination.
The employee’s first hint that something isn’t right would typically include being singled out for something or treated slightly differently than other employees.
It’s usually very subtle and may not be intentional, but senior colleagues are influenced by the closed discussions they are privy to.
In these circumstances, the employee is likely to start making subtle enquiries as to what they could have done wrong to cause their employer’s behaviour towards them. Alternatively, they may ignore it in hope that it was a one-off and won’t be repeated, which is sometimes the case; but usually it starts to get worse.
Further incidents of subtle, less-favourable treatment will start to occur. The employee may even hear racialised comments from colleagues directed towards them, or more generally. Such comments don’t have to be overt.
Incidences like this that include open discussions about certain areas being no-go given their ethnic populations; perceptions that black people don’t eat at nice restaurants; that they come from an impoverished background and other such stereotypes. This is racial harassment and less-favourable treatment.
Several cases that we have acted in have even included incidents where the N word or P word has openly been used on the office floor or directly at an employee.
These are often poor attempts at replicating the language that white people assume is used by minority communities, or jokes, rather than out of direct malice. But this too is undoubtedly harassment on the grounds of race.
When race discrimination becomes serious
The employee may also start to suffer more serious incidents of race discrimination or face victimisation for having raised complaints about their treatment.
In recent years, examples that we have come across include employees who have: been denied promotions due to their race, been placed on performance management procedures because they have raised a complaint about their racist treatment, had their email accounts investigated in an attempt by their employer to find evidence against them of misconduct, been denied their employment rights, such as the loss of or reductions in bonuses.
At this stage, we would strongly advise that the employee seeks legal advice.
Raising a grievance
At this stage, the employee will likely wish to raise a complaint or grievance.
Engaging with the grievance process at their place of work is a step that we would strongly advise the employee to take in all but the most extreme cases, as it can affect levels of compensation.
The grievance complaint is also important as it is a document referenced heavily at any employment tribunal. For this reason, we strenuously advise employees to seek the help of an employment law solicitor who is an expert in race discrimination employment law and has a proven track record in this specialist field.
In our experience, even law firms specialising in employment law – do not have real experts in employee race discrimination cases specifically, so we use the word expert advisedly here.
Making a data subject access request
Making an application under the General Data Protection Regulation (DSAR) is almost always something we recommend. This will allow the employee to find out what information you hold about them and, in many instances, will uncover important evidence of racial discrimination and victimisation.
The timing of the request is often key as it can be very technical, more so when working for large organisations.
We often advise the employee to obtain the terms of reference of the search, and – once disclosed – to carefully investigate the thoroughness of that search.
In our experience employers sometimes try to use devices such as legal privilege, relevance and confidentiality, in attempting to withhold documentation that is prejudicial to the company.
The failure of a company to deal properly with a DSAR in a case of race discrimination could lead to further complaints of less favourable treatment and victimisation.
Raising a grievance or bringing proceedings against an employer for race discrimination is considered by the Equality Act 2010 as a ‘protected act’.
So if the employee suffers a ‘detriment’ (ie harm or loss of some kind) because they have done a protected act, they will have a claim for victimisation. A detriment could be anything, but being ostracised at work, placed on performance management or having false allegations made against them are some of the most common examples.
Victimisation is essentially retaliatory conduct: the detriment the employee suffers must be linked to the employer, or to other employees retaliating against the employee for doing a protected act.
What to expect from a case of race discrimination
Cases of race discrimination can be divided into two scenarios:
The first scenario is where an employee suffers discrimination and wishes to raise the issues with their employer, but then move on, as they believe that they can obtain another role fairly quickly.
The second scenario 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, solicitors would look to negotiate the best possible settlement for the employee’s claim. In the second scenario, however, the employee would be strongly advised to litigate their claims to the fullest possible extent.
What is the value of a race discrimination case?
The value of a racial discrimination case depends on various factors, including: the nature of the discrimination suffered, the employee’s salary, any ‘injury’ (ie mental health) suffered and future employment prospects of the employee. So, such a question has no straightforward answer.
The employee’s solicitor will undoubtedly seek to achieve sufficient financial compensation to secure their client’s transition to a new role, or the next step in their life, whatever that may be.
Our experience suggests that solicitors who work primarily for employers often encourage the employee who has been discriminated against to under-settle.
We have no hesitation in advising employees to engage a suitably qualified and experienced solicitor when it comes to race discrimination cases. The issue is too important, too inflammatory politically, and too technical, for any solicitor without a decade or more of claimant race discrimination experience to be able to deal successfully with your solicitors and – above all – to achieve the best outcome for the claimant.
Tips for employers
If you are aware of race discrimination in your workplace or a grievance for race discrimination is raised, we advise that you: Investigate allegations thoroughly, but also fairly. Ensure that those aware of the allegations made by the employee do not retaliate or treat them differently because of the allegations. Ask the employee what they want by way of a resolution to these issues at the earliest possible stage.