Part 2: Indirect race discrimination
There are times when race discrimination can be less easy to recognise, and this is usually in indirect scenarios. This is when you are treated the same as someone else but because of your race, nationality, citizenship, or ethnic or national origins, that treatment places a bigger detriment on you. Under the Equality Act 2010, this is called indirect discrimination.
For indirect discrimination, the workplace must have a practice, policy or rule, or criteria or practice, which applies equally to everyone, but puts an employee at a particular disadvantage because of their race, ethnicity or nationality. This could be anything formal or informal like arrangements, criteria, conditions, qualifications or provisions.
Examples of indirect race discrimination in the workplace can include when a job advert states that in order to be eligible for the job role, the candidate’s first language must be English. This applies to everyone equally but indirectly discriminates against those whose native language is not English.
Thrive Case Study
Here at Thrive, we assisted a group of employees who were subject to disciplinary allegations for conversing in their first language, rather than in English. The disciplinary decision maker concluded that this made others “uncomfortable” (which was, in of itself directly discriminatory but also relied on the company’s policy of employees being required to speak in English. This gave rise claims for indirect race discrimination.
As an employee what can you do?
If you think that you have been indirectly discriminated against because of your race you should raise the complaint with your employer using the organisation’s formal grievance process.
In some limited circumstances, if the person or organisation you are complaining about can show that there are genuine reasons for the rule, policy or practice and that it has nothing to do with race, this would not be discrimination. Therefore, the indirect discrimination may be justified, this is what the law terms as ‘a proportionate means of achieving a legitimate aim’.
If you are not happy with the way your complaint has been dealt with or you don’t agree with the outcome of your grievance you should seek advice to see whether you have a potential claim for indirect discrimination in the Employment Tribunal.
It is important to note in a discrimination claim that, in all Tribunal claims including discrimination, the legal time limit is 3 months less one day from the last act of discrimination. Therefore, in order to bring discrimination, claim to the Employment Tribunal the discrimination must have occurred in the past 3 months. Through our helpline, we have received a lot of queries about historical racism (eg. over a year ago) which, disappointingly, Employment law does not currently allow claims for.
How can we help you?
At Thrive we are doing all we can to support the black lives matter movement. Even though the media has settled now we must still hear those who need to be heard.
We have launched a FREE helpline for anyone who is concerned about workplace racism. If this is, you or you know someone who has an enquiry please email: BLMsupport@thrivelaw.co.uk
The Thrive Tribe