A recent Daily Mail article demonstrates the continuing pervasiveness of racial discrimination and harassment in the workplace. Mrs Davies, a former Job Centre employee, was subjected to race-related harassment and was forced to resign from her employment because she objected to racially offensive conversations during working hours. She subsequently claimed in the Employment Tribunal for race-related harassment and constructive dismissal (among other things). Employment solicitors often have to deal with cases of this kind and this post is therefore intended to help workers identify when they’re being subjected to race-related harassment in the workplace and what they can (and possibly should) do to protect themselves against it. We’ll therefore take a look at the following:
- What is race-related harassment?
- How can I tell if I’m being subjected to race-related harassment?
- What should I do if I’m being subjected to race-related harassment?
What is race-related harassment?
Harassment because of or related to a protected characteristic is unlawful under s.26 of the Equality Act 2010. Race is a protected characteristic under s.9 of the Equality Act 2010 and includes conduct related to nationality, national origin, ethnicity, ethnic origin and skin colour. Race-related harassment is unlawful.
Race-related harassment occurs when a worker is subjected to unwanted conduct because of or related to their protected characteristic which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant or of violating their dignity. The worker who is being subjected to the conduct doesn’t have to make it clear to the person(s) harassing them that the conduct was unwanted – they must, however, be able to demonstrate that they did not want to be subjected to the particular conduct. This is normally relatively uncontroversial – very few people want to be subject to offensive conduct. The conduct must also be because of or related to race. This doesn’t necessarily have to be the worker’s own race – Mrs Davies was white and was subjected to race-related harassment because she took offence to racism directed at black persons. As a result of this she was the subject of vicious notes which branded her, among other things, a “n*****-lover”. The unwanted conduct must also have the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant or of violating their dignity. Egregious behaviour such as that demonstrated in the above case clearly had the purpose of offending Mrs Davies. However, cases of harassment can often be more subtle than this and the person making the potentially offensive remarks may not be aware that they are causing offence to the victim. This doesn’t matter, though – the victim simply has to show that the conduct had the effect of causing them a detriment.
How can I tell if I’m being subjected to race-related harassment?
“Conduct” can include both words and actions. The offensive words don’t necessarily have to be directed at you (as Mrs Davies’ case shows). For example, you might object to people of Serbian origin being vilified in a conversation in your workplace even though you’re not Serbian (and potentially even if no-one else in the workplace is Serbian). Actions can often be more subtle – if your boss, for example, puts up a racist poster in the workplace (and you’re offended by it) then this will probably constitute harassment. A good rule of thumb is that if you’re offended by a conversation or action in the workplace that is related to your or another person’s race then this may be a case of race-related harassment. However, you must be able to show that you (subjectively) were offended and that a reasonable person would have been offended by what occurred. If the incident complained of is trivial in nature then you may not be able to demonstrate that the conduct complained of justifiably had the effect of offending you.
What should I do if I’m being subjected to race-related harassment?
If you feel you’re being subjected to race-related harassment in the workplace then what you should do depends on the circumstances of the case. What you certainly should do is submit a written grievance to your line manager – you may be able to address the problem internally and you should attempt to do so in most cases before threatening to enforce your rights under the Equality Act 2010. If you feel in a position to do so then you should also let the person(s) offending you know that they are doing so. This is a more difficult thing to do in most people’s circumstances – workers often don’t want to create problems for themselves. Further, you should keep any and all evidence of the unwanted conduct and start making a diary of what’s happened. This will be crucial at a later stage. Should you be unable to put up with the unwanted conduct then you may be able to justifiably resign and claim constructive dismissal.
Redmans Solicitors are London employment lawyers with employment solicitors in Ealing. They offer compromise agreement advice and are unfair dismissal solicitors that specialise in constructive dismissal no win no fee cases