Frequently Asked Questions | india | Hindustan Times
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Frequently Asked Questions

Frequently Asked Questions

india Updated: Jan 17, 2004 15:13 IST
PTI

1. Is there legal protection against discrimination or harassment after the employment relationship has ended?
Yes, the changes introduced by the race regulations now make it unlawful to discriminate or harass someone on grounds of race or ethnic or national origin after the relationship with that person has come to an end, if the act of discrimination or harassment arises out of, and is closely connected to, that relationship; for example, an employer refuses to provide a reference or gives false information to prospective employers.

Under the Race Relations Act, a person can only bring a case under the Act if he or she was discriminated against, for example by an employer or landlord, during the course of their relationship. This means that if an employer discriminates against A, by refusing to give her a job reference after she leaves the firm, A cannot not bring a case of racial discrimination against the firm. This remains the position for acts of discrimination on grounds of colour or nationality.

2. What is the new statutory burden of proof?
Under the race regulations, once a complainant establishes a prima facie case that an act of discrimination or harassment has occurred on grounds of race or ethnic or national origin, the burden shifts to the alleged discriminator (for example the employer) to prove that he or she did not commit the act of unlawful discrimination or harassment (by providing a satisfactory explanation). If the alleged discriminator is unable to do this, the tribunal or court will decide in favour of the complainant.

In cases where the act of discrimination or harassment has occurred on grounds of colour or nationality, the burden of proof is similar, except that if the alleged discriminator fails to provide an explanation or if the tribunal or court finds the explanation inadequate or unsatisfactory, it may infer that the discrimination was on racial grounds.

For the discriminator the consequences of the new burden of proof will be significant: any failure to provide a satisfactory or adequate explanation, to comply with Codes of Practice or equivocation in a questionnaire response may be determinative since the courts and tribunals must find in favour of the complainant.

This may lead to an increase in applications by respondents (or alleged discriminators) to strike out claims, on the basis that the complainant has not established a prima facie case before the court or tribunal considers the respondent’s case. There will also be a greater expectation of respondents to appear before tribunals and courts with explanations supported by evidence, if they choose to defend the proceedings.

3. Does an employee have to work in Great Britain to obtain protection against discrimination or harassment?
Not any more. Under the race regulations, if an employee works wholly outside Great Britain, he or she is protected from discrimination or harassment on grounds of race ethnic or national origins, so long as the work is carried out for the purposes of the employer’s establishment in Great Britain, and the employee is or was ordinarily resident in Great Britain at the time of recruitment, or at some time during the employment (or contract work).

Under the Race Relations Act, the employment has to be carried out at an establishment in Great Britain to obtain protection from discrimination, unless the employee works wholly outside Great Britain. This will remain the position in cases where the alleged discrimination is on grounds of colour or nationality.

4. What other changes are there?
Jurisdiction of tribunals and courts: barristers and public appointments
Complaints of discrimination or harassment on grounds of race, ethnic or national origins by or against barristers or advocates or in public appointments will be heard by the employment tribunal and not the civil courts.

Period within which respondent must reply to questions
A respondent to a case of discrimination or harassment brought on grounds of race, ethnic or national origins will have to respond to preliminary questions put to him by the complainant within eight weeks of being served with the questions.

5. Which exceptions to the 1976 Act have been abolished?
Seamen recruited abroad

It is now unlawful to discriminate on grounds of colour, race, ethnic and national origin in the employment of seamen recruited abroad. Discrimination on grounds of nationality continues to be exempted from the 1976 Act but only in so far as it relates to pay and not the treatment and conditions on board.

Employment for the purposes of a private household
It is now unlawful to discriminate or subject a person to harassment on grounds of race, ethnic or national origin in employment for the purposes of a private household. Discrimination on grounds of colour or nationality for work in a private household continues to be exempted from the 1976 Act.

Employment intended to provide skills to be exercised outside the UK
It is now unlawful to discriminate on grounds of race, ethnic or national origin when providing employment intended to provide training in skills to be exercised outside Great Britain. Discrimination on grounds of colour or nationality for the benefit of a person not ordinarily resident in Great Britain continues to be exempted from the 1976 Act where the purpose of the employment is to provide training in skills to be used outside Great Britain.

Partnerships
It is now unlawful for any partnership to discriminate against or subject to harassment on grounds of race, ethnic or national origin a partner or person who has applied for partnership. Discrimination on grounds of colour or nationality by partnerships of six or less continues to be exempted from the 1976 Act.

Small dwellings
It is now unlawful to discriminate or subject a person to harassment on grounds of race, ethnic or national origin in the disposal of small dwellings (as defined in the 1976 Act). Discrimination on grounds of colour or nationality in the disposal of small dwellings continues to be exempted from the 1976 Act.

Education or training for persons not ordinarily resident in Great Britain
It is now unlawful to discriminate on grounds of race, ethnic or national origin in the provision of education or training to persons not ordinarily resident in Great Britain.

Discrimination on grounds of colour or nationality in the provision of education or training to persons not ordinarily resident in Great Britain continues to be exempted from the 1976 Act.

Charities as employers
It is unlawful for charities to discriminate of grounds of race, ethnic or national origin in employment even where the charity confers benefits on persons of a particular race, ethnic or national origin. In such circumstances charities may rely on the genuine occupational requirement to employ a person of a particular race, ethnic or national origin.

Discrimination in employment on grounds of nationality where the charity confers benefits on particular nationality continues to be exempted from the 1976 Act.

Acts done under statutory authority
Acts of discrimination on grounds of race, ethnic or national origin which are done in pursuance of other statutory provisions will no longer be exempted from the 1976 Act.

6. When do the changes come into force?
Burden of Proof
The new statutory burden of proof applies in proceedings commenced before 19July 2003 as well as on or after that date but it does not affect any case in which proceedings were determined before that date e.g. appeal proceedings on or after 19 July 2003 where the decision of the employment tribunal or county court was made before 19 July 2003.

Questionnaires
The eight week time limit in which a respondent will have to reply to a question on him does not apply to questions served on a respondent before 19 July 2003.

Jurisdiction of employment tribunals
The transfer of jurisdiction from county and sheriff courts to employment tribunals to hear complaints of discrimination or harassment by or against barristers or advocates and in public appointments does not apply to proceedings commenced before 19 July 2002.

All other changes enter into force on 19 July 2003.

7. What if proceedings were issued before 19 July 2003 but there has been no hearing yet?
Where a complaint has been filed but not yet hear then the original provisions of the 1976 Act will apply.

Where a complaint is filed on or after 19 July 2003 but the act of discrimination occurred before 19 July 2003 then it appears that the new definitions will apply.

(Courtesy: Commission for Racial Equality)