RACE REGULATIONS Hilary


Macaskill on what the new Race Regulations mean for businesses


Good for business R


acial discrimination is not only bad for individuals, it is bad for business too, as the Department of Trade and Industry points out: “It is bad for the businesses which are


denying themselves access to the widest pool of talent and not sharing in the benefits, such as increased motivation, lower turnover of staff, and access to wider markets, that a diverse workforce and effective equality policies can bring.” The DTI was responding to amendments introduced last year to the 1976 Race Relations Act. The amendments cover all employers, no matter how small or large, and give employees, including vocational trainees and third party contractors, the right to protection from discrimination and harassment on grounds of race and ethnic or national origin. The Employment Equality (Religion and Belief) Regulations 2003 were introduced at the same time as the Race Regulations, and protect employees from discrimination or harassment on grounds of religion. An isolated incident should not be dismissed lightly as a “one


The Royal Courts of Justice


off” by an employer. If it is, the employer could face costly legal action because a single act, as well as a campaign of victimisa- tion, is valid grounds for a complaint of harassment or discrimi- nation. If an employee complains about the incident and regards it as demeaning and unacceptable, their employer must take action. Discrimination can be direct or indirect: both are taken into account by the law. Segregating a member of staff on racial grounds is a blatant breach of the law, but there are less direct means of discrimina- tion that can land a company in court. When an employer demands, in recruitment advertising, a higher language standard for a job than is needed—or justifiable—they are in breach of the law. This is because, although applied equally to applicants from all racial groups, only a smaller proportion of particular racial groups will be able to comply with the demand, which cannot be justifiable on grounds other than race. The new legislation supplements the 1976 Race Relations Act, and includes helpful new standards and definitions (see box below right). It has also widened the grounds for discrimination and harassment to include religion. The regulations make explicit what was previously inferred: that harassment is illegal. Employers who tolerate it face high fines and heavy legal costs if a tribunal finds against them. Employers must ensure that their recruitment procedures are


first person: AlishaIS A PAKISTANI HUMAN RESOURCES EXECUTIVE


“My personal experience, from within the Pakistani community, is that publishing isn’t a visible industry and therefore I wasn’t aware of it as a career choice. It is not an obvious career path. For many Asians, employment direction is based on the family tradition of gaining professional positions, such as a lawyer or a doctor, and in turn benefiting the community while maximising your own income. As employers, publishers need to do a lot more in terms of branding themselves


to all sorts of background, starting at school and at universities. Publishing isn’t branded as prominently as the IT or retail industries. The power of branding is everything in attracting broad diversity in future candidates. It is a very important issue and I think that publishing has a lot to offer. There is


talent in ethnic communities but publishing needs to seek it out. The biggest task we have is to get the voice of publishing to the ear of ethnic minorities.”


The name of the interviewee has been changed at her request Interview: Aislinn McCormick


14 IN FULL COLOUR


fair and do not discriminate. The Council for Racial Equality acted on behalf of an applicant for a receptionist who had been offered a job interview. Before the interview was arranged some- one telephoned from the company concerned to ask first whether she was Jewish, which she was, and whether she planned to take all the Jewish holidays. She said she planned to take only one day as leave. The caller said the “company had nothing against Jewish people”. That was the last she heard about the job, which she was told later had gone to another candidate who “had differ- ent circumstances”. Before her case was heard in full by an employment tribunal, the company settled out of court for a four- figure sum,the CREsays. The new regulations shift the burden of proof to the alleged discriminator to prove that he or she did not commit the alleged act of discrimination or harassment. If the alleged discriminator is unable to do this, the tribunal or court will decide in favour of the complainant. The Religion or Belief Regulations cover discrimination on


grounds of perceived, as well as actual, religion or belief. For example, if an employer assumes that someone has a particular religion or belief, either correctly or incorrectly, and then discrim- inates against that employee on grounds of their assumed reli- gion they are breaking the law. But Crystal Palace fans should not rejoice that they have some respite from office ribbing. The new regulations do not protect against discrimination on grounds of belief that are not akin to a religion or similar philosophical belief. So a fanatical supporter of a football club or an ideologically committed supporter of a polit- ical party is not protected. The changes are the result of an EU decision in 2000 aimed at


invoking a common standard across member states. The Race Regulations provide for the provisions of the EUDirective (2000) to apply only to acts of discrimination on grounds of race, ethnic or national origins, which conflicts with the original grounds in the 1976 Race Relations Act of nationality and colour, much to the disappointment of theCRE. The CRE is critical of the new regulations, and regards them as confusing and complex. It is campaigning for primary legislation to ensure that all concerned are clear about their duty under law to promote racial equality, which, as the DTI points out, is not only good for individuals, but good for businesses too.


the race regulationsTHE NEW ELEMENTS The elements introduced by the Race Regulations are as follows:


•A new definition of indirect discrimination on grounds of race or ethnic origin or national origin.


•A new, statutory definition of harassment on grounds of race or ethnic or national origin.


•A new exception from the prohibition to discriminate in employment where being of a particular race or of a particular ethnic or national origin is a genuine and determining requirement for the employment in question.


•A new statutory burden of proof in tribunal or court proceedings concerning discrimination or harassment on grounds of race or ethnic or national origin.


•Continuing protection from discrimination and harassment after a relationship protected under the Race Relations Act comes to an end; for example, when employment ceases.


Detailed explanations of the implications of both sets of Regulations can be found on the CRE website (www.cre.gov.uk), and the ACAS website (www.acas.org.uk) also has useful material


12 MARCH 2004


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