CHALLENGING RACE DISCRIMINATION AT WORK BY KARON MONAGHAN
Karon Monaghan is a leading barrister working from Cloisters Chambers. Karon specialises in the field of race relations law. This publication, like all publications of the Institute, represents not the collective views of the Institute but only the views of the author. The responsibility of the Institute is limited to approving its publication as worthy of consideration within the labour movement.
ISBN 1 873271 73 5 March 2000 published by the Institute of Employment Rights 177 Abbeville Road London SW4 9RL 020 7498 6919 fax 020 7498 9080 e-mail ier@gn.apc.org www.ier.org.uk printed by Upstream (TU) 020 7207 1560 ÂŁ8 for trade unions and students ÂŁ30 others THE
INSTITUTE OF
EMPLOYMENT RIGHTS
contents executive summary
iv
CHAPTER 1
introduction
1
CHAPTER 2
the law: new developments in the field of race discrimination the Human Rights Act 1998 EC law no new Race Relations Act? an overview of the RRA
10 10 14 16 21
CHAPTER 3
challenging race discrimination at work
what is race discrimination?
ii
direct discrimination less favourable treatment segregation racial group/racial grounds racial group national origins/nationality colour/race/ethnic origins religion racial grounds proving direct discrimination comparators racial harassment/abuse/stereotypes indirect discrimination requirement or condition disproportionate impact detriment justifiability victimisation less favourable treatment who is protected? by reason that the person victimised has done the protected act bad faith
23 24 24 27 27 28 28 30 31 33 33 36 37 38 39 40 42 43 44 45 45 46 47
CHAPTER 4
race discrimination by employers meaning of employee prospective employees existing employees pay and other terms promotion, transfer and training etc detriment, dismissal and racial harassment ex-employees and post employment benefits
48 48 50 52 52 54 54 57
CHAPTER 5
race discrimination by others in the employment field
60
contract workers 60 trade unions 61 qualification, vocational training, employment agencies 63 CHAPTER 6
secondary liability
64
CHAPTER 7
exceptions and defences section 32(3) defence exceptions for Genuine Occupational Qualifications (GOQs) private households geographical jurisdiction
70 70 71 74 75
CHAPTER 8
bringing a complaint to the Employment Tribunal 77 time limits questionnaires and Code of Practice remedies
77 82 85
conclusion
89
endnotes
90
recent publications
96
contents
CHAPTER 9
iii
executive summary
Race discrimination in the employment field remains prevalent. The law of race discrimination is complex and this can make identifying unlawful race discrimination difficult. This paper aims to unravel the complexities of the law in this area and serve as a user friendly guide to trade unions and other advisers. It is up to date as of 26 January 2000. I Chapter 1 provides a critical look at the development of the law in the field of race discrimination and in particular the legislature’s attitude to the Black and ethnic minority communities. I Chapter 2 considers recent developments and expected developments in the law of race discrimination and provides an overview of the domestic and European protection in this field.
challenging race discrimination at work
I Chapter 3 defines race discrimination for the purposes of the law. The definition is complex and covers direct discrimination, indirect discrimination and victimisation.
iv
I Chapters 4, 5 and 6 describe the circumstances in which it will be unlawful for an employer, co worker, trade union or other body to discriminate against a person. I Chapter 7 identifies the defences a complainant might need to rebut and the exceptions that might apply. I Chapter 8 deals with some of the important considerations that trade unions and other advisers should have in mind in presenting complaints to the Employment Tribunal (ET). This Chapter also gives an overview of the remedies that might be available to a successful complainant in an ET.
The Institute of Employment Rights was launched on 28th February 1989. As a labour law “think tank”, supported by the trade union movement its purpose is to provide research, ideas and detailed argument. In 1994 the Institute was granted charitable status. The Institute has attracted wide and distinguished support. Among the membership are John Hendy QC, Professor Keith Ewing, Lord McCarthy and the general secretaries of Britain’s largest trade unions. The results of the work of the Institute are published in papers and booklets. It also provides short articles, free of legal jargon, for trade union journals and other publications. The Institute provides tools of analysis and debate for the trade union movement in the area of labour law. We are not a campaigning organisation. The Institute does not assume that legal measures can offer ultimate solutions for political, economic and social problems. However, it recognises that law has a part to play in influencing the employment relationship, both individually and collectively. Funding is from various sources, including subscriptions which entitle subscribers to a copy of all our new publications. If you are interested in subscribing or would like to know more about the Institute, then contact us at 177 Abbeville Road, London SW4 9RL, 020 7498 6919.
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CHALLENGING RACE DISCRIMINATION AT WORK
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