Here we explain what things count as race discrimination and how the law protects individuals from race discrimination at work.
On this page:
- What is the law on race discrimination?
- What things count as race discrimination in law?
- Does the equality law protect agency staff?
- Does discrimination law apply outside the NHS?
What is the law on race discrimination?
Individuals are protected by law from race discrimination at work.
The law giving workers in England, Wales and Scotland protection from race discrimination is called the Equality Act 2010. There is separate, but similar, law in Northern Ireland.
The Equality Act bans employers from discriminating against employees or job applicants on grounds of colour, race, nationality, national origin, ethnic origin or caste.
The Act puts additional obligations on the NHS (and other public bodies). They must act to eliminate race discrimination and promote racial equality. These requirements are called the Public Sector Equality Duty.
This Duty also applies to private firms or charities which carry out public functions.
What things count as race discrimination in law?
The types of employer conduct that might be considered “race discrimination” under the law range from the more obvious – turning someone down for a job because of their colour – to procedures which indirectly disadvantage people of a certain ethnic background.
The most obvious form of unlawful race discrimination is when the employer treats someone “less favourably” than they would someone of a difference race, colour etc. This is direct discrimination.
An example could be disciplining a black employee for lateness when they would not have treated a white person that way.
But discrimination doesn’t have to be that obvious to be unlawful. An employer might be guilty of indirect discrimination if it has a way of operating that works to the disadvantage of a certain racial group.
An example would be advertising a vacancy that is only open to staff in a certain grade, if that grade is dominated by white people.
Harassment on grounds of race or national origin can also count as unlawful discrimination under the Equality Act in certain circumstances.
If an employer treats someone differently because they have previously complained about race discrimination, they may be guilty of unlawful discrimination in the form of victimisation.
Does the equality law protect agency staff?
As well as permanent employees, the Equality Act protects contract workers, temporary agency workers and some self-employed workers (though not those who are in business on their own account). In some cases it covers ex-employees.
The Act also covers job applicants and there is no service requirement for protection under the Act.
Does discrimination law apply outside the NHS?
The Equality Act 2010 applies to people working in the private sector in the same way as the public sector.
It does not cover those who are in business on their own account, ‘freely selling their own goods and services at arm’s length to their own clients’.
Private firms and voluntary organisations which carry out public functions (including on behalf of the NHS or local authorities) are also covered by the Public Sector Equality Duty.
Should my NHS trust be taking action to help Black, Asian and minority ethnic staff?
NHS trusts and other public bodies are obliged by law to:
- advance equal opportunities;
- eliminate racial discrimination, harassment and victimisation; and
- foster good relations between people from different ethnic groups.
They must also take some specific actions to help achieve this.
For example, they must monitor by ethnicity their numbers of job applicants, existing staff and staff who apply for promotion or training. They must publish the results every year.
Trusts with 150 or more staff must also take more detailed actions, such as monitoring by ethnicity the number of staff who are subject to disciplinary action or who benefit from performance appraisals.
They must take action to deal with inequalities that are revealed.
All these requirements come under the Public Sector Equality Duty, though the specific actions authorities must take vary between England, Wales, Scotland and Northern Ireland.
NHS Terms and Conditions
NHS bodies are also covered by equality commitments in the NHS Terms and Conditions Handbook. This states, among other things, that it will strive to ensure that:
- all NHS workers can achieve their full potential;
- the past effects of institutional discrimination are identified and remedial action taken; and
- equality of opportunity is guaranteed.
Can an employer discriminate in favour of a Black person?
In rare circumstances the law employers to discriminate by recruiting or promoting someone from an under-represented group.
It has to be a “tie-break” situation where two candidates are exactly equal.
An employer is not allowed to have a policy of treating Black, Asian and minority ethnic people “more favourably” than other groups, even where there is under-representation.
Does the CSP have to comply with equality law?
The CSP, like all trade unions, must not discriminate in the way they make membership, benefits or services available to members and potential members.
This includes, for example, welfare schemes or representation in disciplinary procedures. They must not harass members or potential members on racial grounds.
Their duties are set out in the Equality Act 2010.