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In this series of articles, we are going to explore the complex law of discrimination further. Be sure to check out this article and this one which also cover discrimination. The article below focuses on discrimination in relation to race.

The Equality Act provides protection from discrimination to nine distinct 'characteristics'. In this article, we will be referring to one of those, namely, race.

Briefly, discrimination can be direct or indirect. Direct discrimination is when:

A person treats another person less favourably than they would treat other people; and
That is because of a protected characteristic possessed by the person receiving the treatment, in our case, race.

Indirect discrimination is where a policy, practice or criterion has the effect, if not the intent, of discriminating against a person. Indirect discrimination requires three elements without the defence, however, simply put, a policy needs to apply to someone because of a protected characteristic that puts them at a disadvantage. There is, however, a defence, in that the policy can be shown to be a proportionate means of achieving a legitimate aim. The act provides a means of justifying discrimination.

Harassment appears similar but is not the same as discrimination. It requires,

A person engaging in conduct related to a protected characteristic;
That conduct has the purposes (intent) of violating the other person’s dignity or creating a hostile, intimidating, degrading, humiliating or offensive environment.

Harassment can clearly be on the basis of race. Importantly, harassment and discrimination can both be pleaded in a claim. Where a court finds either it will not find that the other occurred in relation to an incident. Harassment is similar to direct discrimination in that it is personal.

Discrimination can also happen by association. For instance, a person could be discriminated against because of their partner’s race. In addition, a person can be discriminated against without being of the targeted race. This can happen where a group of people are subject to discrimination without the discriminator being aware that members do not share the same race. As a result, the intention to discriminate is what matters, not whether the person belongs to the presumed race.

Definition of Race

S9(1) of the Equality Act 2010 defines race as being comprised of at least one of the following:

colour;
nationality;
ethnic or national origins.

Referring to any combination of the criteria is a reference to a race. So reference to a black or British person is an obvious example of referring to people whose race can be black, British, or both.

Importantly, there is no requirement for a group to be officially recognised in order for a person to be subject to discrimination. This means that so long as a group a person belongs to can be defined using the criteria that person, and the group, can be protected. This means that the state does not have the ability to block groups from receiving protection by refusing to recognise them.

Groups which are very large or difficult to define could still be covered. For example, ‘African’ is a group which contains many colours, ethnicities and nationalities. However, it is likely that discrimination on the basis of a person being African would betray underlying discrimination on the basis of race as defined in the Act.

People who are stateless can be discriminated against on the basis of colour or ethnic origin. Further, because the important point is the intent of the person discriminating, a presumed nationality can be the basis for discrimination even where it is incorrect. A clear example is discriminating against an East Asian person on the basis that they are not British, even where it turns out that they are a British citizen. The belief that the person is not British as a reason for the discrimination is the important point.

There are times where race may overlap with other protected characteristics. Religion often has a strong national connection as with Irish and Catholicism, Pakistanis and Islam or Israelis and Judaism.

In some cases, the courts have held that groups strongly defined by religion constitute a race. For example, Jews and Sikhs are considered to belong to races. In contrast, Muslims or Christians are not defined as a race by reference to their religion.

Where two protected characteristics are linked in the course of a discriminatory act they can both be invoked, so the distinction is not usually relevant.

Who is bound by the Act?

The State cannot discriminate. This includes public bodies, local authorities, the police or armed forces. Private people and bodies are also prohibited from discrimination in defined circumstances or relationships. This includes landlords, employers, venues or businesses providing goods and services. Bodies providing education also must not discriminate on the basis of race. These cover many areas of life but it is worth remembering that the Act itself does not outlaw discrimination in other circumstances. Nor does it outlaw holding discriminatory beliefs, only acting on them.

When a claim is brought on the basis of discrimination, it is done in the name of an individual or specific organisation. A group of individuals may have their claims heard together where similar facts exist. Test cases can be brought by members of a group which will affect the group as a whole when decided.

Discrimination allowed by law

It is legally permissible to discriminate on the basis of race in some circumstances. While this includes the possibility of discrimination on the basis of colour it is politically unlikely that Acts of Parliament would authorise such discrimination. In addition, any instance of discrimination will still be subject to the requirements of proportionality and a legitimate aim looked at above.

Nationality or ethnic origin are characteristics that more commonly permit discrimination, for example in immigration law. The Government is permitted to discriminate against people on the basis of nationality, ethnic or national origins where it is authorised by specific legislation and regulations relating to immigration. The ‘right to rent’ policy is able to impose requirements on landlords to carry out checks on tenants’ right to remain in the UK and to report those who do not. One consequence is that landlords can be allowed to evict tenants who do not have a right to remain, because of their nationality. However, when carrying out their checks landlords must check the right to rent of all tenants, and not only those they suspect do not have the right to remain as that would be direct discrimination.

In the private sector, employers may be able to show that an occupational requirement permits discrimination on the basis of race. For instance, the Coronavirus pandemic has shown that local authorities with high numbers of BAME or immigrant people need to employ people who belong to the communities in their areas in order to carry out track and trace more effectively. There would, therefore, be a strong case for a local authority with a large Bangladeshi community to have a policy favouring Bangladeshi applicants over other applicants for a track and trace job. The same occupational requirements would make it reasonable to select a black actor to play the role of Othello, over a white or Asian actor.

The result is that discrimination is broadly prohibited on the basis of race but may be required by law or justifiable where there is a good reason and it is not disproportionate.

Remedies

Courts can award monetary damages, however, they must consider other remedies first. These include: making a declaration that there was discrimination; require that a decision be made again taking a factor into account or leaving it out; or an injunction to do, or stop doing, something. Several remedies can be claimed together for a single instance of alleged discrimination.

Example

A racial discrimination case, Traveller Movement and Others v JD Wetherspoon Plc, involved a pub refusing to admit Irish Travellers and Romani Gypsies because it was believed that doing so would lead to disorder in the pub. This was because a convention of Irish Travellers had been held near the pub, and the Judge concluded that those responsible for refusal at the pub, were thinking of a recent eviction of Travellers which had become disorderly. By connecting the unrelated events to the race of those at the conference, discrimination was found to exist. However, the members of the group that were not directly refused entry were not found to be discriminated against. Even if it was the knowledge that they would likely be refused entry that led them to go elsewhere. In addition, a number of people who were part of the group but were neither Travellers nor Romani were refused entry and the Court found that they had been directly discriminated against on the basis that they were treated less favourably because of their association.

Race is therefore usually easy to define. It is harder to establish that discrimination occurred because of race. There may be situations where race is a factor, some will be clear-cut while others will be ambiguous. The history of any incident and its context is, therefore, most relevant.

Written by Richard Caruthers

Glossary box

Protected Characteristic - Characteristics that law specifically protects from discrimination. These include; age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Stateless - Where someone does not have citizenship to any country. It is illegal to make someone stateless.

Right to Remain - An immigration statues meaning that someone has the right to be in the country for a period of time.

Leducate Explains: Racial Discrimination