Thanks to Butterworths.co.uk
Wider definition of indirect discrimination
New race relations amendment regulations came into force on 19 July 2003
which widen the definition of indirect racial discrimination and change the
burden of proof. According to Ashley Norman, partner in Pinsents' employment law
team, the changes are "more evolution than revolution'. He talks to Grania
Langdon-Down....
The
Race Relations Act 1976 (Amendment) Regulations 2003 flow from the European
Union race directive and are part of the package of anti-discrimination measures
coming from Europe over the next few years covering sexual orientation,
religious beliefs and age.
Norman, based in Pinsents' Birmingham office, specialises in equality and
diversity issues. He says: "The changes to the burden of proof and the
widening of the definition of indirect discrimination are the most important
amendments, while others which deal with issues such as the definition of racial
harassment and post-employment discrimination largely confirm existing case law.
The regulations may be more evolution than revolution but they extend employees'
rights and may encourage more claims. Taken with other changes, they are
probably a source of worry to employers."
Norman says indirect discrimination used to involve the concept of an
employer imposing a 'requirement or condition' on their workforce which had a
pronounced effect on a particular racial group. "That concept has been
dropped and replaced with what I think is the wider and woollier definition of
applying a 'provision, criterion or practice'.
Applicants also no longer have to show as part of their claim that
a high proportion of people are adversely affected. It is sufficient to show
that by applying this 'provision, criterion or practice' people of a particular
racial group are disadvantaged - even if it is only a couple. "The other
main change is over the burden of proof, which I think makes it easier for
employees.
The old Race Relations Act required the applicant to prove they had
been discriminated against. In subsequent case law, although up to the applicant
to prove they have a prima facie case of racial discrimination, the tribunal was
entitled to infer there had been discrimination if the employer failed to
provide a non-racial explanation for what had happened.
"Under the new regulations, provided the applicant puts forward
facts which on the face of it support a race discrimination claim, the tribunal
shall uphold the complaint unless the employer has a reasonable explanation. So
the emphasis has moved from 'entitled to infer' to 'shall' uphold a complaint.
Tribunals are reviewing how they will apply the new burden of proof, which sets
a higher threshold for employers and is now less a matter of judgment for the
tribunal," he says.
The regulations for the first time include a definition of racial harassment
that someone is "engaging in unwanted conduct which has the purpose or
effect of violating another person's dignity or is creating an intimidating,
hostile, degrading, humiliating or offensive environment".
However, Norman says case law has already established that racial harassment is
a form of race discrimination so the regulations were just making it statutory.
He adds: "The regulations also for the first time outlaw post-employment
discrimination. Typically, this arises when a former employer refuses to give
someone a reference or gives a bad one and questions if this due to
discrimination. Coincidentally the House of Lords recently ruled post employment
discrimination was unlawful in a series of race, disability and sex
discrimination cases.
"The regulations are a double edged sword. It is good if awareness is
heightened to try to reduce the amount of harassment in the workplace but it is
not helpful for employers if they encourage frivolous claims."
(23/07/03)
If you have any comments about this or any other news item or feature,
please respond via e-mail to:[email protected]
|