Equality and Human Rights Commission

There are four main types of racial discrimination: direct, indirect, victimisation and harassment.

Direct racial discrimination

This occurs when you are able to show that you have been treated less favourably on racial grounds than others in similar circumstances. To prove this, it will help if you can give an example of someone from a different racial group who, in similar circumstances, has been, or would have been, treated more favourably than you. Racist abuse and harassment are forms of direct discrimination.

Example: Racial groups

BBC v Souster [2001] IRLR 150

Mr Souster, a presenter for BBC Scotland’s Rugby Special, complained that he had lost his job because he was English and the BBC wanted a Scottish person. Mr Souster claimed that being English was a matter of national origins, while the BBC argued that, since both the Scots and the English share a British passport, there could be no unlawful discrimination between different parts of the one nation. The Scottish Court of Session, which had to decide whether the RRA applies to discrimination between the Scots and the English, ruled that national origins should be interpreted more broadly and flexibly than just by reference to a passport. As England and Scotland were once separate nations, the English and the Scots have separate national origins and therefore the RRA does cover discrimination between them.

On the question of whether the English and Scots are part of a ‘racial group’, the Court of Session followed the House of Lords’ ruling in an earlier case (Mandla v Dowell-Lee, 1983 IRLR 209), to the effect that ‘…it is possible for a person to fall into a particular racial group either by birth or by adherence’. The court also observed that, if the way the discriminator treats someone is based on her or his perception of that person’s national or ethnic origins, then their actual origins, let alone their passport nationality, are irrelevant.

This definition of racial grounds clearly takes into account the complex reality of national identity, where a person may change their nationality by marriage or geographical migration or indeed simply by association, as well as the complexity of racial prejudice, where a person who discriminates may do so in complete ignorance of the victim’s actual nationality or national background.

Indirect racial discrimination

Indirect racial discrimination may fall into one of two categories depending on the racial grounds of discrimination. The first is on grounds of colour or nationality, under the original definition in the Race Relations Act.

The second is on grounds of race, ethnic or national origin. This was introduced by the Race Relations Act (Amendment) Regulations 2003 to comply with the EC Race Directive.

Example: Indirect discrimination

Aina v Employment Service [2002] DCLD 103D

A Black African employee applied for the post of equal opportunities manager in his organisation. He was assessed as having the skills and ability for the job. However, his application was rejected because, unknown to him, the post was open only to permanent staff at higher grades than his. Monitoring data showed that the organisation had no permanent Black African employees at the grades in question.

The employment tribunal held that there was no justification for the requirement, and that it amounted to indirect  discrimination on racial grounds.

On grounds of colour or nationality

This occurs when an apparently non-discriminatory requirement or condition which applies equally to everyone:

• can only be met by a considerably smaller proportion of people from a particular racial group
• which is to the detriment of a person from that group because he or she cannot meet it
• the requirement or condition cannot be justified on non-racial grounds.

For example

A rule that employees or pupils must not wear headgear could exclude Sikh men and boys who wear a turban, or Jewish men or boys who wear a yarmulke, in accordance with practice within their racial group.

On grounds of race, ethnic or national origin

This occurs when a provision, criterion or practice which, on the face of it, has nothing to do with race and is applied equally to everyone:

• puts or would put people of the same race or ethnic or national origins at a particular disadvantage when compared with others
• puts a person of that race or ethnic or national origin at that disadvantage
• cannot be shown to be a proportionate means of achieving a legitimate aim.

The definition of indirect discrimination on the grounds of race, ethnic or national origin is in general terms broader than on the grounds of colour or nationality and as a result it may be easier to establish racial discrimination than previously on that ground.

Victimisation

This has a special legal meaning under the Race Relations Act. It occurs if you are treated less favourably than others in the same circumstances because you have complained about racial discrimination, or supported someone else who has. A complaint of racial discrimination means that someone has:

• brought proceedings under the Race Relations Act against the discriminator or anyone else
• given evidence or information in connection with proceedings brought by another person under the Race Relations Act
• done anything under the Race Relations Act or with reference to it
• alleged that a person has acted in a way which would breach the Race Relations Act.

The complaint does not need to expressly claim discrimination when making the complaint.

Harassment

The definition of harassment introduced by the Race Relations Act 1976 (Amendment) Regulations 2003 applies when the discrimination is on grounds of race or ethnic or national origins, but not colour or nationality. Harassment on grounds of colour or nationality amounts to less favourable treatment and may be unlawful direct discrimination.

A person harasses another on grounds of race or ethnic or national origins when he or she engages in unwanted conduct that has the purpose or effect of:

• violating that other persons dignity; or
• creating an intimidating or hostile, degrading, humiliating or offensive environment for them.

Example: Harassment

Anisetti v Tokyo-Mitsubishi International plc Case No. 6002429/98

The Indian-born head of credit derivatives at an international Japanese bank in London resigned, claiming he had been made to feel like a ‘second-class citizen’ by his Japanese employers. He said he had been humiliated, excluded by workers speaking Japanese and underpaid, simply because he was not Japanese. The bank argued that it was ‘natural’ for Japanese staff to use their own language among themselves.

An employment tribunal upheld the complainant’s claim that he had been discriminated against unlawfully, not because of his Indian national origins, but because he was not Japanese. The tribunal noted that the bank had maintained a practice which had effectively excluded the complainant from various activities, and treated him less favourably than others. The complainant was awarded around £1 million in compensation.

Harassment is unlawful not only in the context of employment, but also within:

• partnerships
• trade unions
• qualifying authorities
• vocational training; and
• employment agencies

It is also an unlawful form of discrimination in education, planning, within public authorities, in the provision of goods, facilities, services and premises, and in relation to the training and employment of barristers and advocates.