Workplace racism has been on the rise for some time now. Tina Chandler, head of employment law at Wright Hassall outlines the legal technicalities of managing racism at work, and how it should be combatted should it ever occur.
1. How is racism reflected within the law?
The concept of discrimination on the grounds of race was first introduced into UK law by the Race Relations Act 1976 and now forms a key part of the Equality Act 2010. Guidance on the issue was provided by the Equality and Human Rights Commission (EHRC), which also created a code of practice contained within the Equality Act. While this code is not legally binding, it does offer a framework for best practice, and any employer who fails to follow the code may well be heavily criticised by courts and tribunals.
2. How do we define racial discrimination?
Outlined within the Equality Act 2010 there are nine protected personal characteristics, one of which is race. There are several types of discrimination that can be applied to any one of these characteristics:
- Direct discrimination. Treating someone less favourably than another because of their race, such as a black person being paid less than a white person doing the same job.
- Indirect discrimination. When workplace procedures or policies put you at a disadvantage due to your race. An example would be banning certain hairstyles or headwear worn for religious or cultural reasons, disproportionally impacting people who are Black or Asian
- Associative discrimination. Treating an individual less fairly because they spend their time mixing with people of a specific race.
- Perceptive discrimination. Treating someone less fairly because you believe them to be of a different race, even though they aren’t.
- Racial harassment. Violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for them, through repeated disparaging comments or actions targeting an individual’s protected characteristic(s).
3. Racism in the workplace on the rise
Data unearthed by ‘Financial News’ showed that the number of employment tribunals dealing with race discrimination claims in the UK rose by 48% during 2020. The upward trend has been apparent for some years now - in 2017 there were 2,036 cases, in 2018 there were 2,948 cases and in 2019 a total of 2,464 were pursued - by 2020 this figure had risen to 3,641.
4. Misunderstanding racism
Workplace high-jinx or playful and friendly exchanges between colleagues is often a much misunderstood and overlooked catalyst for race discrimination claims.
Implying that racist remarks made in the workplace are simply ‘banter’ is a dangerous assumption. Although the difference between racism and perceived banter can be marginal, the focus should remain on how the recipient of the comments feels, not the intentions of the person who made the remark.
Regardless of if its non-malicious intent, any comment with racial undertones, has the potential to cause distress. Believing something is funny is no excuse, and further berating someone’s negative response to it will only further marginalise them.
Failure to manage such potentially damaging repartee could be incredibly costly in the long term.
5. What is an employer’s duty of care?
The Health and Safety Executive states that employers have a duty of care to protect the physical and mental welfare of their employees, which can of course be damaged in cases of prolonged racial harassment.
If an employee’s mental wellbeing is impacted, and it can be linked to racial harassment or discrimination in the workplace, then the employer may be seen as being negligent. Furthermore, if that employee feels they have been forced to leave their job because of the situation, then the employer may find themselves subject to a claim for constructive dismissal.
6. How can a business protect itself?
The goal should be to create a working environment in which racist behaviour is less likely to happen, but also where complaints of such behaviour are treated seriously and dealt with appropriately.
As such, it is critical that businesses have thorough inclusion, diversity, and grievance policies in place. These will ensure that employers are far better placed to defend themselves against claims of harassment or discrimination, on the basis that they had a framework in place to prevent such instances from occurring.
All policies should be based on in-depth consultation with employees to be truly reflective of the workforce. They should include the appropriate mechanisms for highlighting any incidents of inequality, racism, or discrimination, and should be regularly reviewed and evaluated in operation to ensure that it is fit for purpose in dealing effectively, and swiftly, with any complaints.
It is also advisable that a senior member of the management be made responsible for communicating diversity and inclusivity, as well as establishing a strict zero-tolerance approach to any form of racial discrimination - disciplining or dismissing those who are found to be in breach of these rules.
Staff training is also advisable, to educate, in practical terms, exactly what is meant by racism in the workplace and terms such as ‘unconscious bias’, as it removes any question over what behavioural expectations are.
7. How should complaints be dealt with?
If a complaint is made, it needs to be handled in a manner that reflects the wishes of the complainant. In some cases, they may simply request an apology or ask that situation be monitored in the future. In others, the seriousness of the allegation might mean that demand that disciplinary proceedings are commenced.
Often, it is most sensible to follow a formal grievance procedure as this demonstrates an acute understanding of the gravity of the situation and ensures strict protocols are met in investigating the matter and taking any necessary action. If your employee handbook has been put together effectively then it should include details of the procedure that should be followed when a complaint of this kind is made.
Steps will involve providing whatever support is available in-house – such as counselling through an employee assistance programme (EAP), or access to external organisations which provide support to victims of harassment, bullying, and discrimination.
On occasion, the employee may choose to report the matter to the police. If the situation becomes this severe then employers should seek expert legal advice. Even if the case eventually goes to court and the complainant loses, employers may still be in a position to take disciplinary action, as the level of proof needed for this will be lower than that required by a court.
8. The failure to manage racism
Whilst it’s undoubtedly an incredibly sensitive issue, ignorance is no justification for inaction. Failing to prevent a culture in which racial discrimination is seen as acceptable, and then compounding this failure by dealing with an incident that arises inadequately, could cause irreparable damage to your business.
In the first instance, it could lead to you losing valuable members of your team, followed by having to defend an employment tribunal claim in court. At its worst, a case of this kind could lead to massive reputational harm. In an era in which the social responsibility of brands plays an increasingly large role in driving the decisions of consumers, this could result in a substantial hit to the bottom line. In other words, promoting inclusivity and protecting your employers is good for business at the same time as being overwhelmingly ethically correct.
Racism in the workplace is not only morally redundant but also mentally corrosive for those involved. By holding anyone who participates in such reprehensible actions accountable, employers can safeguard not only the psychological wellbeing of their workers but ensure a more productive and respectful environment for all concerned.