Race discrimination at work

‘Race’ as referred to throughout includes colour, ethnic or national origins and nationality. 

Claims

Race discrimination at work is one of the more serious claims that can be brought in an employment tribunal. 

These days, most claims relate to direct race discrimination or harassment. This is where someone is treated less favourably or harassed due to their race or perceptions about their race. 

Less commonly, claims can be for victimisation or indirect racial discrimination. Victimisation is where someone makes a claim about race discrimination or helps someone who is facing discrimination and is treated badly for doing so. Indirect race discrimination is where a policy or practice at work puts BAME employees at a disadvantage compared to their white counterparts. 

The development of race discrimination in the workplace

These days, race discrimination in the workplace is rarely apparent as BAME individuals are offered senior roles and positions of influence in organisations. 

These employees are employed based on their merits or based on the increasing benefits of institutional diversity. This is a ’non-discriminatory’ basis where all individuals are treated the same. 

When does race discrimination start?

Irrespective of the employer’s intentions when recruiting, it is usually after a few years of employment in the organisation that issues start. This is because organisations can be institutionally racist or there are individuals with racists views in the organisation. 

Our experience tells us that employees facing discrimination usually have a normal working relationship with other employees and their employer and don’t consider race discrimination until something perverse happens. 

The circumstances that trigger racial discrimination could be anything. From experience, however, it’s most commonly where the employee seems to be challenging authority. 

What is considered as challenging authority?

Usually, the person whose authority is considered to be challenged is a white and middle-class senior manager. Challenges to their authority could include:

• Raising concerns over the performance of a team
• Raising concerns about regulatory compliance
• Highlighting issues within the business, amounting to whistleblowing
• Making a complaint about the treatment of colleagues 
• Making a complaint about a bonus or applying for a promotion

In the past five years, Monaco Solicitors has handled cases in which each of these have triggered a claim of race discrimination. Most importantly, it seems that the BAME employee was treated differently from a white employee when they were considered to be challenging authority. 

Race becoming an issue

Having been considered to be challenging authority, it seems that the employee’s race is now an issue. Despite employers being happy to employ BAME individuals, when they are considered to be challenging authority or acting beyond their status, they will be vulnerable to discrimination.

From the cases that we have seen, the employee is initially unaware of the discrimination as it happens behind closed doors. This usually involves the senior managers discussing the employee and their perceived challenging of authority. 

As the managers start to agree regarding their views of the employee’s behaviour, this creates a closed environment in which the race of the employee is comfortably discussed. Any senior-manager who has racist views will then feel comfortable airing their views in this environment. This is race discrimination. 

Noticing race discrimination 

The BAME employee is usually still unaware of any racial discrimination and the conversations of senior managers. It’s only when they are singled out for something or are obviously treated less favourably than their colleagues, that they get the first hint of something not being quite right. 

The person discriminating against the employee may not be doing so intentionally or obviously, but they will likely be influenced by the discussions that senior-managers were having. 

At this point, the BAME employee starts to become more aware of their race and concerned that something isn’t right. 

The employee may start to question themselves and what they could have done to cause this reaction. The employee could also consider it a one-off and probably won’t happen again, but mostly it starts to get worse. 

Race discrimination getting worse

The employee will start to feel more isolated as subtle similar incidents start to occur. Discriminative comments may be being made, either directly or even more generally, they don’t have to be obvious. 

Some of the cases that we have seen have included making assumptions about where black people eat or drink, stereotyping or that individuals come from an impoverished background. Not only is this less-favourable treatment, but it is also racial harassment. 

We’ve even seen cases in which racial slurs are used towards the BAME employee or around the office, including use of the “N” word. However, these words aren’t usually used with bad intentions. These incidents often involve employees trying to replicate stereotypes as “jokes” or comments, but this is still considered racial harassment. 

More serious race discrimination

The employee may then start to suffer more serious race discrimination or be victimised for raising a complaint about racial discrimination in the workplace. Some cases that we have seen include incidents such as:

• Having raised a complaint about racist behaviour, the employee has been put on performance management
• Being denied or having a reduction in bonuses. 
• Being denied a promotion
• Having been investigated in an attempt to find evidence of misconduct. 

Time limits for making a claim of race discrimination are very short, so at this stage, we strongly advise that the employee gets legal advice. 

Grievances

If an employee decides to raise a complaint or grievance at this point, it is important to engage with the employer’s grievance process. Failure to do so in all but the most extreme cases can affect levels of compensation. 

It is also advised that a lawyer is instructed to help with writing a grievance as it is a document heavily relied upon at an employment tribunal. 

Victimisation

Having raised a grievance, the employee may face retaliatory conduct such as being placed on performance management or having false allegations made against them. Under the Equality Act 2010 raising a grievance is a protected act, so if the employee faces a detriment like this for having raised a grievance, this will constitute victimisation. 

Victimisation and the detriment suffered must be linked to colleagues or the employer and must be a consequence of doing a protected act, such as raising a grievance. 

Data subject access requests

We would almost always recommend that an employee makes a data subject access request application. This usually uncovers evidence and information regarding racial discrimination. 

In making an application under the General Data Protection Regulation (DSAR), we advise that the employee asks the employer for the search reference. This will allow the employee to investigate the thoroughness of that search once carried out. 

In an attempt to withhold prejudicial documents and evidence of race discrimination, employers may sometimes try to use legal privilege and confidentiality. This could lead to further complaints of less favourable treatment in failing to adequately deal with DSAR. 

Race discrimination cases

There are usually two reactions to cases of race discrimination:

In the first scenario, the employee will want to raise a grievance or complaint about the incidents with the employer. Instead, they believe that they can get another job fairly quickly, so leave. Here, the lawyer would look to negotiate the best settlement for the employee when leaving their role. 

In other circumstances, an employee may have been discriminated against in a way that affected their mental health and that the incidents have adversely affected their future. Lawyers in these circumstances would likely litigate this claim to its full extent. 

The value of a race discrimination claim will depend on the incidents of discrimination, any injury suffered (such as mental health), future employment prospects and the employee’s salary. However, a lawyer will seek to achieve a settlement or compensation that is sufficient for the employee to take their next step in life or move to another role. 

The employer’s response

Employers and their solicitors will often try to under settle the claim. This means that they will try and get the employee to settle the claim for less than its potential or actual worth. 

Our experience suggests that this can occur where solicitors work for employers and don’t want to cross swords with large organisations or where the solicitor is inexperienced. 

Addressing race discrimination

If an employee in your organisation raises a grievance, we advise that employers:

• Thoroughly and fairly investigate the allegations. Matters are much more likely to end up in an employment tribunal, or even the media, where a company denies it or fails to investigate it. 

• Thoroughly and fairly investigate the allegations. Matters are much more likely to end up in an employment tribunal, or even the media, where a company denies it or fails to investigate it. 

• Thoroughly and fairly investigate the allegations. Matters are much more likely to end up in an employment tribunal, or even the media, where a company denies it or fails to investigate it.