Awards in race discrimination cases are rising, so how can companies protect themselves? David Vine explains
Statistics released by the Commission for Racial Equality (CRE) have shown that 43% of the 5,000 complaints received over the past six months were regarding employ-ment, with the most common complaints concerning workplace bullying, lack of career progression and being unable to secure interviews.
These statistics reveal that race discrimination within the workplace is not being taken seriously enough. Race discrimination is not high enough on companies’ agendas both at the interview stage and during an employee’s time with a company.
All businesses should be aware of the negative effects of not adhering to these regulations. Recent analyses by the Employment Tribunal Service revealed that 2005/06 saw a 23.7% increase in racial discrimination cases, with the award for a race discrimination case averaging £30,361. However, awards are uncapped so many cases may run into thousands of pounds more than the current average.
This amount of money can be extremely costly for a small business and many may not have previously realised the potential damage race discrimination cases can cause.
The race issue is a growing one, and one that is often brought to the fore in national media when high profile cases are highlighted – the most recent example, of course being the Big Brother saga where Jade Goody was seen bullying Shilpa Shetty with racist remarks. When such publicity is created around what is actually an extremely sensitive issue, people become more aware of what is considered to be racist and in turn are more likely to take a company to court.
Emphasis on the complacency about racism really peaked in 1993 when Sir William Macpherson initiated the Lawrence Inquiry and, even though research was based around racial street violence, one definition which came out of this is still very important to bear in mind; this being that ‘a racist incident is any incident which is perceived to be racist by the victim or any other person’.
This definition alone highlights the broad and sensitive nature of racism and how easy it is for a company to fall foul of the race relation laws.
Many may not realise that racial discrimination falls into two catergories: indirect and direct (both of which need to be guarded against). An example of indirect discrimination would be if a particular race of people are typically short, and a company says: “We don’t employ short people.” Direct discrimination would be an outright comment like: “We won’t employ him because he’s white.”
However, comments are much more subtle nowadays and racial comments are extremely subjective. Someone may make a comment that was not meant to be racially offensive but, if the ‘victim’ views the comment as racist, then they potentially have a right to claim at tribunal. There is no such thing as an innocent comment any more.
It is important to realise that even if the racist comments or acts come down to bullying by another colleague and do not come directly from management it still becomes a problem for the company as a whole. This exemplifies the point that each employee should be refreshed on what is classed as racism, and ask questions which will help to avoid any cases arising against the company:
Are the company and its employees acting fairly?
Do the services provided reach all communities and meet all their needs?
Is the same professional standard being applied in each individual situation?
Other key points to note would be the slight difference in the way race discrimination cases are tried in the sense that when these go to tribunal there is a requisite for a reversed burden of proof – meaning it is up to the defending company to prove the act/comment was not racial – as opposed to sex or age discrimination cases, for example, where the claimant needs to prove it happened.
If a company’s processes for any employee in a permanent or temporary role, including apprentices and trainees, are found to be
discriminatory (see box), then it is likely to face the possibility of paying out compensation which could potentially run into millions of pounds, not to mention significant amounts of time away from the office during tribunal hearings.
Many employers may opt out of agreeing to a tribunal to save embarrassment for the company. However, this does not always guarantee a lesser financial result for the claimant. It is not an easy way out.
The CRE highlights how all businesses should be vigilant and aware of racial discrimination and states: “It is incumbent on every institution to examine their policies and the outcome of their policies and practices to guard against disadvantaging any section of our communities…
“There must be an unequivocal acceptance of the problem of institutional racism and its nature before it can be addressed, as it needs to be, in full partnership with members of minority ethnic communities.’”
This highlights the importance of all employees in a business having a clear understanding of the size of racism as being a prominent issue in the workplace, as well as being aware of the repercussions should another employee decide to take a company to court over a racist incident.
Race discrimination is an issue that affects industries across the board and no business, however large, should feel immune or take the ‘it will never happen to me attitude’, because those are the times when it usually does.
Recent research by Allianz Legal Protection revealed that a company is six times more likely to face an employment dispute than have a fire – yet insurance for a fire is almost an automatic acceptance. With race discrimination claims on the increase, companies would be well advised to ensure a commercial legal expenses policy is effected as no day is ever the same, because one day there might be the shock of being faced with a tribunal case.
Macpherson’s report defines institutional racism as: “The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin.
“It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.”
Companies should be searching for the best talent and the person most suited to the job. If not, questions could be raised as to whether companies are missing out on very talented candidates, and whether all prospective employees are being treated fairly. IT
David Vine is business development manager at Allianz Legal Protection