Race Regulations 2003
Race Regulations 2003india Updated: Jan 17, 2004 15:08 IST
On 19 July 2003, a new law to strengthen protection from racial discrimination and harassment came into effect. The Race Relations Act 1976 (Amendment) Regulations 2003 (‘the Race Regulations’) incorporates the EU Race Directive into UK law by making changes to the Race Relations Act 1976.
1. What does the EU race directive say?
The EU race directive is concerned with the principle of equal treatment between people, irrespective of their racial or ethnic origin. It sets minimum standards of protection, which all member states of the EU must meet. Member states may exceed these standards and introduce more favourable provisions, but under article 6(2) of the directive, they cannot reduce the standards of protection they already provide. The directive covers:
d. Access to, and supply of, goods and services that are available to the public, including housing
e. Social protection
f. Social advantage
2. What are the changes introduced by the new law?
The Race Regulations 2003 introduce the following main changes. These apply in the areas covered by the EU race directive.
a. A new definition of indirect discrimination on grounds of race or ethnic origin or national origin.
Race regulations: Indirect discrimination
b. A new, statutory definition of harassment on grounds of race or ethnic or national origin.
Race regulations: Harassment
c. A new exception from the prohibition to discriminate in employment where being of a particular race or of a particular ethnic or national origin is a genuine and determining requirement for the employment in question.
Race regulations: Genuine occupational requirements
d.Continuing protection from discrimination and harassment after a relationship protected under the Race Relations Act comes to an end; for example, when employment ceases.
e. A new statutory burden of proof in tribunal or court proceedings concerning discrimination or harassment on grounds of race or ethnic or national origin.
f. The Race Regulations also abolish the exceptions from the prohibition against discrimination in the Race Relations Act for:
Employment in a private household
Charities in their role as employers, and
Partnerships of six or less partner.
3. Do the changes apply to all racial grounds?
No, the changes introduced by the Race Regulations apply to acts of discrimination on grounds of race, ethnic or national origin: they do not apply to acts of discrimination on grounds of colour or nationality. This is because the EU race directive only prohibits discrimination on grounds of race and ethnic origin.
However, it is important to remember that acts of discrimination on grounds of colour or nationality are prohibited under the provisions of the Race Relations Act 1976.
4. Do the changes apply to all public functions as well as services?
The changes only apply to the provision of goods facilities and services and to the following public functions:
Any form of social security;
Other forms of social protection; and
Any form of social advantage.
The race regulations do not make express reference to public functions such as enforcement or regulation – for example stops and searches by the police, or disciplinary action in prisons. However, these functions arguably fall within the ambit of 'social protection' or 'social advantage', but only the courts can clarify any ambiguity.
As defined in the race regulations, indirect discrimination on grounds of race or ethnic or national origin occurs when a person, A, applies to another person, B:
A provision, criterion or practice which A applies to everyone; and
The provision criterion or practice puts (or would put) people from B's race or ethnic or national origin at a particular disadvantage; and
The provision criterion or practice puts B at a disadvantage; and
A cannot show that the provision, criterion or practice is a proportionate means of achieving a legitimate aim.
Examples of provisions, criteria or practices which might be indirectly discriminatory
A firm’s policy of filling senior management positions internally, from a pool of senior and middle managers, most of whom are white, may be indirectly discriminatory.
A word-of-mouth recruitment policy in a firm where the majority of the workforce are Asian could be indirectly discriminatory.
Colour or nationality
The definition of indirect discrimination in the Race Relations Act 1976 will continue to apply in complaints of discrimination based on grounds of colour or nationality. In these cases, indirect discrimination will occur when a person, A:
Applies to B a condition or requirement which A appears to apply equally to everyone; and
The proportion of people from B's racial group (based on colour or nationality) that can comply is considerably smaller than the proportion of people not from that group who can comply with it; and
A cannot justify the requirement or condition on non racial grounds; and
The requirement or condition is to B's detriment, because he or she cannot comply with it.
Example of a requirement or condition
A bank requires applicants for a loan to be registered on the electoral roll, so that it can carry out credit checks. This may discriminate indirectly against non-UK nationals who are not eligible to vote.
Provision, criterion, or practice
The words ‘provision, criterion, or practice’ have a broader scope than ‘requirement or condition’, and will therefore catch informal as well as formal practices. This means there will be more circumstances in which claims of indirect discrimination may be brought.
Method of proof
Another difference between the two definitions lies in the method of proof: the Race Relations Act 1976 requires evidence that a ‘considerably smaller proportion’ of people from a particular racial group are able to comply with the requirement or condition compared with people not from that group. Statistical data demonstrating the difficulty a group has in complying may be hard to come by, and although it is not vital, its absence can make it difficult to prove a differential impact.
The new definition requires evidence only that the provision, criterion or practice ‘puts or would put people from a particular racial or ethnic group at a particular disadvantage.’ It thereby allows policies or practices to be challenged at an early stage before they have had any, or little, impact.
An employment policy making everyone work on a Friday, which some Jews observe as the sabbath.
Under the Race Relations Act 1976, harassment on racial grounds is regarded as direct discrimination, because it constitutes a 'detriment' in employment or in the way a service is provided.
The race regulations make harassment on grounds of race or ethnic or national origin a separate unlawful act. This will occur when a person, A, subjects another person, B, to unwanted conduct on grounds of race or ethnic or national origin that has the purpose or effect of:
violating B's dignity; or
Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
Harassment on grounds of colour or nationality will continue be treated as possible direct discrimination under the Race Relations Act 1976.
As the new statutory definition of harassment reflects the law as currently applied by the courts and tribunals, it is unlikely that the change introduced by the race regulations will increase the range of circumstances in which complaints of harassment are brought. However, two changes in the law should be noted:
The new definition of harassment does not require a comparator, since it is not a form of discrimination but a separate, unlawful act.
The test of whether conduct amounts to harassment will be an objective one – the reasonable person test. This has been criticised for setting a higher test than the one currently applied by the courts and tribunals.
For example, an Asian employee who is regularly called ‘boy’ by a manager does not need to show that a white employee would have been treated differently. However, if the manager called every male employee ‘boy’ then the Asian male employee would need to have made it clear that he felt harassed by this behaviour.
Genuine occupational requirements
Under the race regulations, any job may be restricted to people of a particular race or ethnic or national origin, if one of these characteristics is a genuine occupational requirement (GOR) for the job or the context within which it is carried out. This means that employers may lawfully discriminate on these grounds in recruitment, promotion or transfer to a job, in dismissal from a post, and in training for a job.
Also, employers will need to show that it is 'proportionate' to apply the GOR to the job.
An Asian women’s refuge wants an Asian woman for the post of staff manager.
Previously, it would not have been possible to rely on the equivalent exemption under the Race Relations Act for such posts (see below). This is no longer the case, but the employer has to show that:
The nature of the job or the context in which it is carried out requires the manager to be Asian; and
the benefits of employing an Asian manager outweigh the effects of discriminating against other racial groups.
Colour or nationality
As colour and nationality are not genuine occupational requirements in the new definition introduced by the race regulations an employer who wants to recruit someone of a particular colour or nationality, will have to use the more limited exemption provided in the Race Relations Act.
Under the Race Relations Act, an employer can only claim that racial grounds (colour or nationality) are a genuine occupational qualification in the following circumstances:
To achieve authenticity – the job involves a dramatic performance or other entertainment or modelling for artistic or photographic work, and someone from a particular colour or nationality is needed to achieve ‘authenticity’; for example, a theatre company needs black actors for street scenes in a multiracial neighbourhood;
To create a particular mood or ambience – the job involves working in a restaurant or bar that serves food and drink from a particular country or region and the restaurant wants to create the right ambience; and
To provide personal services – the job involves providing clients of a particular colour or nationality with personal services related to their welfare, and the services will be provided most effectively by someone from the same racial group.
The new definition of a genuine occupational requirement can be applied to any job, not just the three types of employment listed above. Importantly, it can be applied not just where the nature of the job calls for an employee from a particular racial group but also where the context in which the job is carried out demands it as shown in the example above.
The race regulations do not reflect the exact wording of the EU race directive, as they do not include a requirement that the GOR be used to achieve a ‘legitimate objective’.However, it is probable that the courts and tribunals will want to see a legitimate objective for a GOR in cases which come before them.
(Courtesy: Commmission for Racial Equality)
First Published: Jan 16, 2004 17:19 IST