It is worth noting here that a number of test-cases have found in favour of appellants claiming racial discrimination across or within internal GB borders. England, Scotland and Wales should now be deemed separate countries for the purposes of the law.
The Act introduced a number of sub-categories of discriminatory behaviour, now common to most anti-discrimiantion legislation, namely:
- Direct discrimination
- Indirect discrimination
These practices are unlawful, although employers can claim exemption if race or ethnicity form part of a ‘genuine occupational qualification’. A clear example of this would be advertising for a waiter of Chinese origin to work in a Chinese restaurant, in order to promote the culture and ambience of the place in the eyes of the dining public.
The Act also introduced the principle that employers are first and foremost liable for the discriminatory acts of their employees, both in the workplace and beyond (if they are work-related, for example a Christmas party), unless the employer can demonstrate that they have taken all reasonable steps to obviate this. An employee who practices any form of discrimination, victimisation, or harrassment on racial grounds may be personally liable too.
The Code of Practice recommends that all employers put together a policy on racial equality, with a concrete action plan for its implementation, and a clear line of management responsibility for that. This should be a written policy (Section 3.11) “…which sets out:
framework for action
- the employer’s commitment to the principle of equality;
- the organisation’s ethos and values;
- how the policy applies to the organisation’s procedures and practice;
- what is and what is not acceptable behaviour at work;
- how to use the organisation’s complaints procedure to raise any concerns or complaints workers might have about discrimination or harassment;
- the rights and responsibilities of all; and
- how the organisation will deal with any breaches of the policy.
The policy should cover all aspects of employment, including recruitment, terms and conditions of work, training and development, promotion, performance,
grievance, discipline and treatment of workers when their contract of employment ends.
As far as possible, the equal opportunities policy should be drawn up and agreed in consultation with workers and any recognised trade unions or other workplace representatives.”
In addition, it states (3.15) that: “… employers need to be able to show that they take their equal opportunities policy seriously, and put it into operation in all aspects of employment in the organisation. The most systematic, practical and effective way of approaching this is to draw up an equal opportunities action plan. Its aims should be to: (a) promote the equal opportunities policy; and (b) make sure all workers understand the policy, and provide training for those who have particular responsibilities under it.”
Under the law, public authorities have an additional duty to monitor, by racial group, all of their workers and applicants for jobs, training and promotion. Such monitoring is highly recommended for private sector employers too, mostly in the name of good practice, but also as a protection against any potential appeal to a tribunal by a worker or job applicant.
Data on ethnic classifications within an employer’s journey-to-work area can be extracted from the 2001 Census, along with other material from the Office of National Statisitics. From this, analytical comparison can be made with breakdowns of workforce groups and sub-groups.
It must be recognised, though, that the accumulation of such material is a highly sensitive matter, and employees will need to be reassured on matters of confidentiality and, through careful consultation, made aware of the advantages of logging this information.
Positive discrimination is unlawful, under the terms of the Act, but it does recognise that there may be times when positive action is needed, to help overcome some of the disadvantages experienced by certain racial groups that have suffered, historically, from discrimination.
The Act therefore allows for the provision of equal opportunities in employment for under-represented groups. This may take the form of additional training and education, or simply the provision of language classes, with the aim being the creation of a level playing-field for all.