Race Discrimination in the Workplace

Race discrimination in the workplace is perhaps the most serious of all claims that can be brought to an employment tribunal.

Broadly speaking, most claims of race discrimination at work these days are for:

• ‘Direct’ race discrimination, where someone is treated less favorably than others because of their race, or perceptions about their race.
• Harassment, where someone is harassed for the same or similar reasons as above.

Other types of employment claims exist but are less common than the above two:

• Victimization, where someone is treated badly for making a complaint about race discrimination or for helping someone who is being discriminated against.
• ‘Indirect’ racial discrimination, where there is a policy or practice in the workplace which puts BAME employees at a disadvantage. This is a claim we don’t come across very often anymore.

These days, in a white-collar world, race discrimination is rarely overt. If it were, BAME workers wouldn’t be offered senior roles or achieve positions of influence in large organizations, which they most certainly do: we have represented some of them.

BAME employees tend to be employed on a ‘non-discriminatory’ basis by medium to large organizations (i.e. all individuals are treated the same).  In this kind of work environment, individuals are either judged on the merits of their application, and/or employers increasingly recognize the benefits of – and need for – institutional diversity.

Regardless of your initial intentions as an employer, it’s usually once an employee has been with you for a few years when issues start.  This is particularly true where the organization is institutionally racist or where there are racist individuals in the organization.

In our experience, the employee discriminated against will typically have a normal working relationship with their employer and their colleagues, and won’t perceive that race discrimination exists at work until something untoward happens.

The event that triggers racial discrimination in a professional environment could be anything, however, we’ve seen this is usually when the employee seems to be challenging authority.

The person whose authority is perceived as being challenged is invariably a white and middle-class, senior middle manager.

What they perceive as a challenge to their authority can include:

• Raising serious issues within the business amounting to whistleblowing
• Highlighting concerns over the performance of a team or regulatory compliance
• Complaining about a bonus or the treatment of colleagues, or even applying for a promotion

Each of these scenarios has triggered serious race discrimination claims that Monaco Solicitors have handled in the past 5 years. Most importantly, in every instance, the BAME employee appears to be treated differently from a white colleague when perceived to be challenging authority.

It’s at this point, it seems, that the employee’s race becomes an issue. It would appear that employers only happily employ BAME individuals who will keep their head down in the office. However, when these employees assert themselves in a manner that is perceived to be beyond their status, they become vulnerable to discrimination.

In our experience, discrimination often begins behind closed doors and the employee in question is likely to be unaware of it. It usually starts with more senior colleagues discussing the employee’s behaviors between themselves and the event in which the employee was perceived to have challenged authority.

When the senior colleagues begin to agree with one another about the employee’s behavior, a closed environment is formed in which they feel comfortable discussing the employee as a person of color. If a colleague in that closed environment has racist views, eventually these views will be aired or intimated. This is racial discrimination.

At this point, the employee in question is usually still unaware of these conversations. Their first hint that something isn’t right would typically include being singled out for something or treated less favorably or slightly differently than other employees.

It’s usually very subtle and might not be intentional on the part of the person/s discriminating against the employee concerned, but senior colleagues are influenced by the closed discussions they’re privy to.

This is where the employee is likely to start becoming concerned and more aware of their race, whereas they may not have previously considered it.

In these circumstances, the employee is likely to start making subtle enquiries as to what they could have done wrong to instigate their employer’s behavior towards them.  Alternatively, they may ignore it in the hope that it was a one-off and won’t be repeated. Sometimes it doesn’t happen again: mostly it starts to get worse.

Further incidents of subtle, less-favorable treatment start to occur, increasing the employee’s feeling of isolation. The employee may even hear racialized comments from colleagues directed towards them, or more generally.  Such comments don’t have to be overt.

Incidences like this include:

• open discussions about certain areas being “no-go areas” given their ethnic populations
• perceptions that black people don’t eat at nice restaurants or like certain drinks
• that they like certain music
• come from an impoverished background
• and other such stereotypes

This is racial harassment and less-favorable treatment

Sometimes, racial slurs are even used in the office around the employee or directly at them.  Several cases that we have acted in have included incidents where the “N” word or “P” word have been openly used on the office floor or directly at an employee.

Strangely, these words are rarely used out of direct malice towards a BAME employee. They’re often poor attempts at replicating the language that white people assume is used by minority communities, or “jokes”, or throwaway comments.   But this too is undoubtedly harassment on the grounds of race.

Having sensed a pattern of ‘low-level’ discrimination, the employee may also start to suffer more serious incidents of race discrimination and may also face victimization for having raised complaints about their treatment.

In recent years, examples that we have come across include employees who have:

• Been denied promotions due to their race
• Been placed on performance management procedures because they have raised a complaint about their racist treatment
• Had their email accounts investigated by their employer in an attempt to find evidence against them of misconduct
• Been denied their employment rights, such as the loss of or reductions in bonuses

At this stage, we would strongly advise that the employee seeks legal advice, as time limits for making claims of race discrimination are very short and the procedures they must follow to safeguard their employment rights are complex.

At this stage, the employee will likely wish to raise a complaint or grievance about the racial discrimination they’ve suffered.

Engaging with the grievance process is a step we would strongly advise the employee to take in all but the most extreme cases, as it can affect levels of compensation.

The grievance complaint is also important as it is a document referenced heavily at any employment tribunal.  For this reason, we strenuously advise employees not to attempt writing the grievance on their own but to seek the help of an employment law solicitor who is an expert in race discrimination with a proven track record in this specialist field.  

Many law firms - even those specializing in employment law - don’t have real experts in employee race discrimination cases specifically, so we use the word “expert” advisedly here.

Making an application under the General Data Protection Regulation is almost always something we recommend.  This will allow the employee to find out what information you hold about them. In many instances, a data subject access request application will uncover important evidence of racial discrimination and victimization.

The timing of the request and terms of reference is often key.  This can be very technical, more so when working for large organizations.

We often advise the employee to obtain the terms of reference of the search from the company, and  - once disclosed - to carefully  investigate the thoroughness of that search.

In our experience employers sometimes try to use devices such as legal privilege, relevance and confidentiality, in attempting to withhold documentation that is prejudicial to the company and which could be important evidence in a serious claim of discrimination.

The failure of a company to deal properly with a DSAR in a case of race discrimination could lead to further complaints of less favorable treatment and victimization.

Often, someone raising a grievance alleging discrimination will suffer a ‘detriment’ (i.e. harm or loss of some kind) as a consequence of doing so. Raising a grievance or bringing proceedings against an employer for race discrimination is considered by the UK’s Equality Act 2010 as a ‘protected act’.

So if the employee suffers a detriment because they’ve committed a protected act, they’ll have a claim for victimization.

Victimization is essentially retaliatory conduct: the detriment the employee suffers must be linked to the employer, or to other employees, who are retaliating against the employee for doing something like raising a grievance alleging race discrimination, which is a protected act.

A detriment could be anything: an employee being ostracized at work, being placed on performance management or having false allegations made against them are some of the most common examples.

Cases of race discrimination call for serious consideration of both short and long-term tactics, depending on the specific needs and circumstances of the employee. These can be divided into two scenarios:

The first scenario is where an employee suffers discrimination and wishes to raise the issues with their employer, but then move on, as they believe they can obtain another role fairly quickly.

The second scenario is where an employee has been discriminated against to such an extent that their mental health has deteriorated and their treatment has adversely affected their future.

In scenarios such as the first, solicitors would look to achieve the best possible settlement for the employee’s claim through negotiations. In the second scenario, however, the employee would be strongly advised to litigate their claims to the fullest possible extent.

The value of a racial discrimination case depends on various factors, including: the nature of the discrimination suffered, the employee’s salary, any ‘injury’ (i.e. mental health) suffered and future employment prospects of the employee. So, such a question has no straightforward answer.

The tactics and cost structures put into place by solicitors representing the employee should suit the nature of the claim. The employee’s solicitor will undoubtedly seek to achieve sufficient financial compensation to secure their client’s transition to a new role, or the next step in their life, whatever that may be.

We have no hesitation in advising employees to engage a suitably qualified and experienced solicitor when it comes to race discrimination cases. 

Our experience suggests that solicitors who work primarily for employers often encourage the employee who has been discriminated against to under-settle, this means settling a case for less than its potential or actual financial worth.  It can occur from a solicitor’s lack of experience representing claimants,  or possibly from a concern not to cross swords with large organizations who they might sometimes represent.

If you’re aware of race discrimination in your workplace or a grievance for race discrimination is raised, we advise that you: