Jemima Coleman sets out the impact of the new Race Directive in the UK
For once the UK is ahead of the rest of Europe with by far the most enlightened statutory framework to tackle race discrimination. We have had the Race Relations Act, founded on the principle of equal treatment of individuals irrespective of their racial or ethnic origin, since 1976. However, this now needs to be amended in the light of a new radical European Council Directive (2000/43/EC) (the "Race Directive"). This new directive will require implementation by the UK by 19th July 2003.
The Race Directive together with the Framework Directive (2000/78/EC), (which prohibits discrimination on grounds of religion or belief, disability, age or sexual orientation), demonstrate the European Union's commitment to combat discrimination and to promote integration within the community.
To understand the impact of the new Race Directive on the UK, it is necessary to consider the scope of the existing legislation.
Race Relations Act 1976
In the employment context, the Race Relations Act 1976 aims to eliminate inequalities between individuals of different racial groups as regards access to employment, selection for training and promotion and working conditions. The key provisions of the Race Relations Act are set out below:
- Direct discrimination – this is where a person is treated less favourably on racial grounds. (Section 1(1)(a) RRA). This includes racial harassment. Segregating a person on racial grounds amounts to less favourable treatment (Section 1(2) RRA)
- Indirect discrimination – this is where a requirement, which does not specifically refer to race, has the practical effect of discriminating against particular racial groups. Such requirements are unlawful unless they can be justified on non-racial grounds (Section 1(1)(b)(RRA).
- Victimisation – this is where a person is treated less favourably because they have asserted a right under the Race Relations Act or assisted others to do so.
Racial Grounds
Racial grounds is defined as grounds of "colour, race, nationality or ethnic or national origin". Whilst determination of colour, race and nationality may be relatively straight forward there has been much discussion on the meaning of ethnic origin. Courts have held that a religious, social or cultural group may not constitute an ethnic group for the purposes of the Act. Evidence of a shared history, of which the group is conscious, is required. This has resulted in a situation where some religions, such as Judaism and Sikhism, may come within the protection of the Act whilst others, such as Islam and Rastafarianism, may not. Once the Framework Directive is implemented, also by July 2003, any discrimination in the employment field on grounds of religion or belief will be prohibited.
Harassment
There is no separate cause of action of harassment under the Race Relations Act 1976. It has been held that harassment constitutes less favourable treatment and therefore comes within the definition of direct discrimination. By reference to the European Commission's Code of Practice in relation to sexual harassment, the courts have developed their understanding of what constitutes harassment in the racial context. Harassment can be verbal, non-verbal (such as gestures, looks and noises, displays of pictures etc.) or any other conduct which degenerates, ridicules or intimidates on racial grounds. When determining whether an individual has been harassed, the courts exercise a balancing exercise between subjective and objective tests. Focus is placed on the impact on the recipient as opposed to what the intent was of the perpetrator. However, in order to satisfy a tribunal that the conduct constitutes discrimination, the recipient must have had a reasonable reaction to the conduct.
Vicarious liability
An employer can be held liable for "anything done by a person in the course of his/her employment ... whether or not it was done with the employer's knowledge or approval"(Section 32(1) RRA). The scope of vicarious liablity has developed in recent years to impose an obligation even where the individual is not doing an authorised act. A statutory defence is available under Section 32(3) for an employer if it proves "that it took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing, in the course of his employment acts of that description".
Employers liability for other acts of Racial Harassment
An employer may be liable for other acts of racial harassment in the workplace if these occur in circumstances in which the employer has control. This means that employers may be liable for acts of racial harassment of their employees which are committed by customers, clients or visitors to the workplace as well as those committed by fellow employees.
Race Relations (Amendment) Act 2000
The Race Relations (Amendment) Act 2000 has its origins in the Commission for Racial Equality's Report of its third review of the operation of the Race Relations Act 1976 and the report by Sir William McPherson into the death of black teenager Stephen Lawrence. It received royal assent on 30 November 2000 and is expected to come into force in April. The 2000 Act aims to tackle institutional racism and make the UK a fairer and more just place to live. It is also essential in helping to build the confidence of ethnic minority communities in public services. This Act brings all public services within the scope of the Race Relations Act 1976 and creates new duties on public authorities to promote equality of opportunity and good relations between persons of different racial groups.
There are certain exemptions, for example, an act by a public authority in relation to immigration or nationality functions is not unlawful where it is done in accordance with specified legislation or in accordance with a relevant ministerial authorisation. This reflects the position that Home Office and Foreign and Commonwealth Office Officials who operate immigration policies are required to discriminate between individuals on the basis of their nationality and ethnic or national origin when determining their entitlement to enter or remain in the United Kingdom. The Act introduces the position of a Race Monitor who is responsible for monitoring how the ministerial authorisations are operated in practice.
The 2000 Act makes Chief Officers of Police vicariously liable for acts of race discrimination by police officers. It also makes Chief Officers of Police vicariously liable for acts of race discrimination by constables under his direction and control. It also provides for compensation, costs or expenses awarded as a result of a claim to be paid out of the police fund. The employer's defence to a vicarious liability claim (Section 32(3) of the 1976 Act) now applies by virtue of the 2000 Act in respect of Chief Officers of police. These are welcome developments.
Race Directive
The Race Directive prohibits discrimination both in the employment context and in other areas such as education, social security, healthcare, and access to and supply of goods and services. The content of the Directive broadly mirrors that of the Race Relations Act 1976, although there are a number of important differences.
- Direct discrimination is defined as where "one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin". This reflects the current UK approach.
- One important difference is that direct discrimination is expressly defined to include harassment. Harassment occurs when "unwanted conduct related to racial or ethnic origin takes place with the purpose of or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment." As explained above, the courts currently carry out a balancing exercise between the subjective reaction of the victim and the objective view of the reasonableness of the reaction. The new definition broadly reflects the way the courts and tribunals currently deal with harassment claims. Arguably, it goes further towards protecting an individual's subjective reaction by reference to the "effect" of the conduct. It shall be vitally important for employers to thoroughly investigate any insensitive treatment even where it may not seem at first sight to be racially based.
- Indirect discrimination is defined as where "an apparently neutral provision, criteria or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criteria or practice is objectively justified by a legitimate aim and a means of achieving that aim are appropriate and necessary". This expands the scope of the existing provisions relating to indirect discrimination under UK law. It permits an individual to bring a claim where there is a mere risk of discrimination and arguably allows an individual to bring a claim without the need to compile statistical evidence to demonstrate actual discrimination.
- Victimisation - this reflects the current UK definition.
One significant change is in relation to the burden of proof. When a claimant produces evidence of direct or indirect discrimination, the burden of proof shifts to the Respondent to prove that there had been no breach of the principle of equal treatment. It will bring the rules in line with those applicable in the context of sex discrimination which reverses the burden of proof from July of this year. This provision is less dramatic than it seems as it reflects what already tends to happen in practice at Tribunal.
In conclusion, the Race Directive is a welcome development in the area of combating race discrimination. However, whilst it introduces some significant changes, the impact of the new directive will be milder in the UK than across the rest of Europe as a result of our pre-existing anti-racist legislation.
For further information, please contact Jemima Coleman by e-mail at jemima.coleman@cms-cmck.com or by telephone on +44 (0)20 7367 3156.
