Combatting racism and race discrimination in the workplace

The horrible topic of racism in the workplace has reared its ugly head again, which highlights the ongoing need for every employer to continue to do all it can to eradicate it.

All employers, of all sizes, should aim for a culture of zero tolerance of racism and race discrimination.

 It is essential because by law an employer can be held responsible if a member of staff subjects someone else to any type of race discrimination.

 As a result of ‘vicarious liability’ an employer can be held responsible for the acts of its employees carried out in the course of their employment [1 cited 23.1.23]

 Discrimination legislation means work-related discriminatory acts committed by a member of staff are treated as having been done by an employer. It can occur inside or outside of the workplace e.g. at a work social event or on social media.

 A shocking study found the majority of ethnic minority workers had experienced racial harassment at work, and been subjected to unfair treatment by their employer because of their race [2 cited 23.1.23]

 Over 40 per cent of those who took part in the research, published in 2019, said they had reported a racist incident and were either ignored, or subsequently identified as a ‘trouble maker’.

 Appallingly, more than one-in-ten respondents who said they raised a complaint said they were subsequently disciplined or forced out of their job as a result of doing so

 Race discrimination occurs when a person is treated differently because of their race in one of the situations covered by the Equality Act 2010 [3 cited 23.1.23]

In the Act, race can mean your colour, or your nationality (including your citizenship). It can also mean your ethnic or national origins, which may not be the same as your current nationality.

The discriminatory treatment could be a one-off action or as a result of a rule or policy based on race. It does not have to be intentional to be unlawful.

And it is the question about whether the act is or is not intentional, which made recent headlines and sparked controversy and widespread discussion about how an employer deals with such a situation.

The former Crawley manager, John Yems, was banned from football for 15 months after an investigation into 16 alleged racist comments he made to his players between 2019 and 2022

He was found guilty of 11 offences and admitted one charge for the offensive comments between 2019 and 2022 [4 cited 23.1.23]

The panel found that although reference was made to players’ ethnic origin and colour, he was not a ‘conscious racist.’

It was reported that the football anti-racism body, Kick It Out, said the findings set a ‘dangerous precedent’ by allowing a perpetrator to claim harmful language was ‘banter.’

Kick It Out reportedly said: ‘The behaviour outlined in the report must be called out for exactly what it is: racism and Islamophobia.

‘To speak plainly, a 15-month ban - given the severity of the 11 proven charges - is a slap in the face to the victims of the discriminatory abuse detailed in this report and anyone who has been subject to racism or Islamophobia.’

Yems was suspended by Crawley and sacked last year.

Any employee can make a complaint of race discrimination, at any time. How an employer deals with such a complaint is crucial.

ACAS advise [5 cited 23.1.23] :

As an employer, you should:

• Take any complaint of race discrimination very seriously – this includes racial harassment and victimisation.
• Think very carefully about the way you handle a complaint, to make sure you do it fairly and sensitively and follow the right procedures.

 If you do not, the problem might be raised as a formal complaint later, or lead to an employment tribunal claim if it's not resolved.

Taking it seriously can:

• Show you are working to make the workplace fair
• Give staff confidence to raise an issue.
• Help stop and prevent unacceptable behaviour.
• Reduce the likelihood of legal action.

 What all employers need to know when dealing with a complaint of racism or race discrimination.

 The complaint

You should take any complaint seriously and investigate it without unreasonable delay. It may be raised verbally, as a formal grievance or using a similar policy e.g. dignity at work or bullying and harassment.

Allow the employee to fully explain their complaint, listen to it, understand it, investigate it thoroughly and fairly and address it.

There are four main types of race discrimination [6 cited 23.1.23] :

• Direct discrimination - occurs when someone is treated worse than another person in a similar situation because of their race.

• Indirect discrimination - is when an employer has a specific policy or way of working that puts people of any racial group at a disadvantage.

• Harassment - is when someone is made to feel humiliated, offended or degraded as a result of their race.

• Victimisation - is when someone is subjected to unfavourable treatment because they made a complaint of race related discrimination under the Equality Act.

Any complaint of race discrimination should be kept strictly private and confidential and only those who need to know about it should.

An employee subjected to any type of discrimination at work can often feel isolated, afraid and suffer in silence before they find the courage, or feel they have the appropriate support, to report it.

If a complaint is made weeks, months or even years after the events occurred, it should still be taken seriously.

 The investigation

The investigation process should be comprehensive, reasonable and aim to establish the facts in relation to any complaint.

It is unusual to find direct evidence of race discrimination. Such a case will often depend on what inferences it is proper to draw from the primary facts.

You do not have to prove that racism or race discrimination occurred to a criminal standard i.e. beyond reasonable doubt.

As an employer you are required to reach a reasonable belief that the alleged act/s occurred as claimed in a complaint.

You must have reasonable grounds for the belief, which must have been reached following a reasonable investigation.

In some cases, certainly not all cases, it may be possible to resolve complaints informally and prior to conducting a formal investigation.

This should be considered where practicable, and if the complainant expresses a wish to resolve their particular grievance in this way.

If you do have to conduct an investigation, ACAS provide a five-step guide to conducting grievance investigations [7 cited 23.1.23] : 

Step 1: Deciding if there needs to be an investigation.

Step 2: Preparing for an investigation.

Step 3: Carrying out an investigation.

Step 4: If there are witnesses.

Step 5: What happens after an investigation.

Getting any race-related investigation wrong can have extremely serious and costly consequences.

There is currently no cap on the amount of compensation that can be awarded to an employee if a claim for any type of discrimination suffered at work is successful.

A hospital trust was ordered to pay nearly £4.5m in compensation to a doctor who was hounded out of her job after suffering race and sex discrimination [8 cited 23.1.23]

Remember

Any complaint of racism or race discrimination at work can be difficult and unsettling for any workplace.

As an employer it is essential that you listen carefully and understand any complaint made, and do so with an open mind without jumping to automatic conclusions.

Any employee making a complaint of race discrimination will need support, as will any member of staff who has had such allegations levelled against them.

Follow a proper and consistent investigation process.

It is always advisable to seek independent expert advice about how to deal with any complaint of racism or race discrimination.

Here at Castle Associates our dedicated and skilled Employer Support Team can help with such a situation.