Cheshire, Halton and Warrington Race and Equality Centre

Race

This section of the site is about discrimination on the grounds of race.

It is unlawful for a person to discriminate on racial grounds against another person. The law defines racial grounds as including race, colour, nationality or ethnic or national origins.

On the following page, find out more about race discrimination, your legal rights and what to do if you are being discriminated against.

●What is race discrimination?
●What forms does racial discrimination take?
●In what settings does racial discrimination occur?
●When is race discrimination lawful?
●Advice on what to do if you are racially discriminated against

What is race discrimination?
The 1976 Race Relations Act is concerned with people's actions and the effects of their actions, not their opinions or beliefs. Racial discrimination is not the same as racial prejudice. It is not necessary to prove that the other person intended to discriminate against you: you only have to show that you received less favourable treatment as a result of what they did.

Under the Race Relations Act, it is unlawful for a person to discriminate on racial grounds against another person. The Act defines racial grounds as including race, colour, nationality or ethnic or national origins.

To bring a case under the Race Relations Act, you have to show you have been discriminated against in one or more ways that are unlawful under the Act.
●Your protection under the Race Relations Act 1976
●What forms does racial discrimination take?

Your protection under the Race Relations Act 1976
The Race Relations Act protects you from racial discrimination in most, but not all, situations. You will therefore have to show that the discrimination you have suffered comes within the areas covered by the Act.

On 2 April 2001, amendments to the Race Relations Act came into force which covers public authorities that had previously been exempt. This means that around 45,000 public authorities in the UK are now required to meet the general duty to promote race equality. A few public authorities are exempt, such as the Security Service.

Racial discrimination may occur in the way that someone provides you with goods, facilities and services, including housing. It can also occur in public services, such as health and education and other public services. Racial discrimination may also occur in, the field of employment. There are a few small number of areas not covered by the Act these are outlined in the section called When is racial discrimination lawful?

The Race Relations Act 1976 (Statutory Duties) Order 2001 identifies specific steps to be taken by public authorities to comply with this specific duty. Discrimination in any of the areas listed on What forms does racial discrimination take? is unlawful under the Race Relations Act.

What forms does racial discrimination take?
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.

Employment
As well as extending protection against discrimination to employees, the Act also extends to partnerships.

If discrimination is on grounds of colour or nationality, it is unlawful to discriminate in relation to a position as a partner in a firm, provided the firm consists of six or more partners. However, the prohibition against discrimination on grounds of race or ethnic or national origin extends to firms with fewer than six partners.

The Act also applies to members of trade unions (or those seeking membership of trade unions) and applies to authorities or bodies which issue authorisations or qualifications for engagement in professions and trades. In addition, individuals seeking or undergoing training for vocational purposes are also covered. Similarly, employment agencies cannot discriminate against individuals that receive their services.

The Secretary of State must not also discriminate in the provision of facilities of services under Section 2 of the Employment and Training Act 1973. This relates to the Manpower Services Commission.

All aspects of employment, including recruitment, selection, promotion, transfer, training, pay and benefits, redundancy, dismissal and terms and conditions of work are protected.

For exceptions, see When is racial discrimination lawful?

Education
The amended Act applies to all schools and colleges maintained by local education authorities or education authorities (in Scotland), independent (fee paying) schools and colleges, further education colleges, special schools, early years providers, universities, local education authorities and governors of schools and colleges and school boards (in Scotland).

The amended Act covers admission, treatment as a pupil or student, and exclusion, as well as decisions by local education authorities and education authorities (in Scotland), such as decisions on special educational needs.

Goods, facilities and services
The amended Act applies to anyone providing goods, facilities or services to the public; for example: hotels, shops, banks, insurance companies, financial services, cinemas, theatres, bars, restaurants, pubs, places of entertainment or refreshment, transport and travel services, and services provided by any local or public authority and by any profession or trade. It is unlawful to be refused a service, or not to be given the same standard of service extended to others.

For exceptions, see When is racial discrimination lawful?

Housing
The amended Act applies to the selling, letting or managing of property (including business premises), making it illegal to discriminate in the way any of these activities are conducted.

For exceptions, see When is racial discrimination lawful?

Stop and search
Racial discrimination in law enforcement, including stop and search, is covered by the Race Relations Act.

This means that if you believe you have been stopped and searched by the police directly because of your race or colour (or indirectly, for example because of your hairstyle or language that you speak) you can complain of racial discrimination. The same applies if you have been less favourably treated on racial grounds than someone else was - or would have been - treated during the stop and search, for example in the way you were spoken to.

For exceptions, see When is racial discrimination lawful?

Any public function
Since 2 April 2001, the Act has applied to all the functions of public authorities that were previously excluded.

This brings within the scope of the Act the law enforcement or control functions of government agencies, including the police, the Crown Prosecution Service, the probation service, Customs and Excise, the immigration service and the prison service; and the regulatory functions of local authorities, including environmental health, trading standards, licensing, and child protection.

If you believe you have been discriminated against, directly, indirectly or by way of victimisation, by any public authority since 2 April 2001, you have the right to bring a complaint in a county court in England and Wales or in a sheriff court in Scotland. Certain complaints of discrimination relating to decisions on immigration status will be considered as part of the one-stop immigration appeal procedure.

You are also protected against discrimination where a public function is being carried out by a private company or a voluntary organisation on behalf of a public authority. This means the Act applies to prison discipline in private prisons as well as prisons run by the Prison Service.

For exceptions, see When is racial discrimination lawful?

When is race discrimination lawful?
Read through the examples of when racial discrimination can be lawful:
●Exceptions in employment
●Exceptions in housing
●Exceptions in services
●Exceptions in certain public authorities
●Additional areas outside the scope of the act

Exceptions in employment
Work that is for the purpose of a private household where the discrimination is on the grounds of colour or nationality. However, any discrimination on grounds of race or ethnic or national origins is prohibited for work of this purpose.

Discrimination in the employment context on the grounds of race or ethnic or national origins is permissible where being of a particular race or ethnic or national origin is a genuine and determining occupational requirement, and it is proportionate to apply that requirement in a particular case. Discrimination on the grounds of colour and nationality is also permissible where being of a particular racial group is a genuine occupational qualification for the job. The circumstances in which this would apply are identified in the Act.

Where discrimination is on the grounds of colour or nationality and where the employee is employed wholly outside Great Britain, the provisions of the Act do not apply.

Where discrimination is on grounds of race or ethnic or national origin and the employee is wholly employed abroad. However, the employee can claim protection under the Act if the employer has a place of business at an establishment in Great Britain, and the employee is ordinarily resident in Great Britain at the time when he applies or is offered the employment or at any time during the course of the employment.

Seamen recruited from outside Great Britain cannot be discriminated against unless the discrimination is on grounds of nationality and involves pay.

Exceptions in housing
Owner-occupiers selling or letting their property are exempt from the amended Act if they do not advertise or use an estate agent, and the discrimination is on grounds of colour or nationality. This exemption does not apply if the discrimination is on grounds of race, ethnic or national origins.

Rental accommodation in "small premises", where the landlord/landlady or owner or a member of his or her family also live, and where they would have to share facilities with people who are not members of the household. This is exempt if the discrimination is on grounds of colour or nationality, but not if the grounds of discrimination are those of race, ethnic or national origin.

Exceptions in services
The amended Act does not apply to:
●taking in and caring for foster children or elderly people
●clubs, associations and charities set up especially for people from a particular ethnic or national group; discrimination on the basis of nationality or ethnic or national origin is not unlawful, but discrimination based on colour is prohibited.

Exceptions in certain public authorities
The Act does not apply to:
●the work of the Houses of Parliament or the security services
●judicial or legislative acts and decisions not to prosecute
●certain immigration and nationality functions where discrimination is permitted on grounds of nationality or ethnic or national origin

Additional areas outside the scope of the Act
The following areas are also outside the scope of the Race Relations Act:
●anything written, produced or broadcast by the media — the law of libel applies only to individuals, not to groups of people
●anything done under 'statutory authority' in order to comply with an Act of Parliament (whenever it was passed), or rules or regulations made by a government minister under any law; for example, a parent's choice of school may be racially discriminatory, but quite lawful under the education laws
●racist attacks or harassment on the street or in your home; these could be criminal offences and should be reported to the police or the Race & Equality Centre
●discrimination that occurs in other countries of the EU; however, many countries have their own laws against racial discrimination. The EU race directive, approved in June 2000, required all EU countries to introduce laws outlawing racial discrimination by July 2003.