Race discrimination in the workplace

 

This article will consider race discrimination in white collar work environments by guiding you through the experiences of a BAME (black, Asian and minority ethnic) employee who was subjected to race discrimination and advises you of what to do if you have been racially discriminated against at work. 

 

 

‘Race’ as we use it here includes colour, nationality and ethnic or national origins.

 

 

This guide covers:

 

 

  • Race discrimination claims
  • Our credentials in employee race discrimination cases
  • How does an employment race discrimination case develop?
  • Raising a grievance
  • Making a data subject access request
  • Victimisation
  • What to expect from your race discrimination case
  • What is the value of your race discrimination case?
  • Can you conduct your race discrimination case yourself?
  • How to choose a good race discrimination lawyer
  • Next steps

 

 

Race discrimination claims

 

 

Race discrimination in the workplace is perhaps the most serious of all claims that can be brought in an employment tribunal.

 

 

Broadly speaking, most claims of race discrimination in employment are for:

 

 

  • ‘direct’ race discrimination, where someone is treated less favourably than others because of their race, or perceptions about their race.
  • harassment, where someone is harassed for the same or similar reasons as above.

 

 

Other employment claim types exist but are less common than the above two.  They include:

 

 

  • victimisation, where someone is treated badly for complaining about race discrimination or for helping someone who is being discriminated against.
  • ‘indirect’ racial discrimination, where an employer has a policy or practice which disadvantages BAME employees. This is a claim we rarely encounter nowadays.

 

 

(See our overview discrimination article for more detail on discrimination types and claim categories.)

 

 

Our credentials in employee race discrimination cases

 

 

Monaco Solicitors have represented clients in some of the most high profile and highest value race discrimination cases in the City of London in recent years. Each case was settled before trial, and some for amounts approaching £1,000,000.

 

 

Our opponents in claims have included some of the largest banks, insurance companies, and financial institutions in the world. So, we almost certainly have the most extensive experience of race discrimination cases of any employment law firm representing employees only in the UK.

 

 

Given our experience, we are well placed to delve deeper into the complexities of race discrimination cases than most other legal websites. So at the heart of this article is our analysis of a modern race discrimination case involving black, Asian, and ethnic minority (BAME) employees in white collar roles.

 

 

 

 

How does an employment race discrimination case develop?

 

 

These days, in a white-collar world, race discrimination is rarely overt. If it were, then BAME workers would not be achieving positions of influence in large organisations or offered roles in the City of London and elsewhere, which they undoubtedly do, as some of them are our clients.

 

 

Medium to large organisations tend to employ BAME workers on a ‘non-discriminatory’ basis (ie they treat all individuals the same), either because they individuals will be judged on the merits of their application, or as they recognise the benefits of and need for institutional diversity.

 

 

What triggers race discrimination against an individual employee?

 

 

Regardless of the initial intentions of your employer, it is usually once you have been employed for a few years that issues start if the organisation is institutionally racist or that there are racist individuals in the organisation.

 

 

In our experience, you, as the employee discriminated against, have a normal working relationship with your employer and other employees and do not perceive race discrimination in any way until something untoward happens.

 

 

The event that triggers racial discrimination in a professional environment could be anything, but we have observed that it’s usually if you are seeming to challenge authority.

 

 

Perceived challenges to authority by BAME employees

 

 

The authority of whom is being challenged is invariably a white and middle-class senior middle manager.

 

 

Their perceived challenge by you to their authority may come in many ways.  For example:

 

 

  • raising serious issues within the business that amount to whistleblowing;
  • highlighting concerns over regulatory compliance or the performance of a team;
  • complaining about a bonus or the treatment of colleagues, or even applying for a promotion.

 

 

Each of these scenarios has triggered serious cases of race discrimination in claims that we have dealt with in the last five years. What is important is that the BAME employee appears to be differentiated from a white colleague by challenging authority.

 

 

When race starts to become an issue

 

 

Despite previously not being an issue, at that point, it seems that your race became an issue. In other words, an employer will happily employ BAME individuals that keep their heads down in the office. However, when they assert themselves in a manner that is perceived to be beyond their station, they become vulnerable to discrimination.

 

 

In our experience, this discrimination often begins behind closed doors and if you are the employee in question, you are likely to be unaware of it. It usually starts with more senior colleagues discussing your behaviours amongst themselves and the event in which you were perceived to have challenged authority.

 

 

Where the senior colleagues begin to agree with one another about your behaviour, it acts as a closed environment in which they feel comfortable discussing you as an employee of colour. If a colleague in that closed environment holds racist views, eventually they will air them or intimate them. That is racial discrimination.

 

 

When you first become aware of being discriminated against

 

 

Usually, the employee in question will be unaware of such conversations at this point. Your first hint that something wasn’t right would usually include being singled out for something or treated slightly differently and less favourably than colleagues.

 

 

It’s usually very subtle and may not always be intentional, but they are influenced by the closed discussions they are privy to.

 

 

This is where you are likely to start becoming concerned and more aware of your race, whereas you may not have even previously considered it. Something doesn’t feel quite right.

 

 

In these circumstances, you are likely to start making subtle enquiries as to what you could have done wrong to cause this behaviour, or you may ignore it all in hope that it goes away. Sometimes it does go away: mostly it starts to get worse.

 

 

 

 

How the race discrimination worsens

 

 

Your feeling of isolation then grows, further incidents of subtle, less-favourable treatment occur, and you may even hear racialised comments directed towards you or more generally, from colleagues. These don’t have to be overt.

 

 

Incidences like this that we know of, include open discussions about certain areas being “no-go areas” due to their ethnic populations; perceptions that black people don’t like certain drinks or eat at nice restaurants; that they come from an impoverished background, like certain music and other such stereotypes.  This is racial harassment and less-favourable treatment

 

 

Sometimes, overt racial slurs are used in the office around the employee or directly to them. We have acted in several cases where the “N” word or “P” word has openly been used on the office floor or an employee has directly been called that name.

 

 

Strangely, it is rarely out of direct malice towards the BAME employee that these words are used. They are often throwaway comments, or “jokes” or poor attempts at replicating the sort of language white people assume is being used within minority communities. This too is undoubtedly harassment on the grounds of race.

 

 

When race discrimination becomes serious

 

 

Having suspected a pattern of ‘low-level’ discrimination, you may also start to suffer one or more serious incidents of race discrimination. If you have raised complaints about your treatment, you may also face victimisation for having raised those complaints.

 

 

Examples we have come across in recent years include employees who have:

 

 

  • been denied promotions because of their race, 
  • been placed on performance management procedures because they have complained about racist treatment towards them, 
  • had their email accounts investigated in an attempt to find evidence against them, 
  • been denied their employment rights, including the loss of or reductions in bonuses and similar. 

 

 

At this stage, it is vital that you seek legal advice as limits for making claims of race discrimination are very short and the procedures you must follow to safeguard your employment rights are complex. (See our article on time limits for making a tribunal claim.)

 

 

Raising a grievance

 

 

At this stage, it is likely that, as a victim of race discrimination, you will wish to raise a complaint or grievance. (See our article on when to raise a grievance.)

 

 

Engaging with your employer’s grievance process is a step that you should almost always take, and we would recommend it in all but the most extreme cases, as it can affect levels of compensation.

 

 

The grievance complaint is also important as it is a document referenced heavily at any employment tribunal.  For this reason, we would strenuously advise not to try writing the grievance on your own, but to engage an expert employment law solicitor to help you. 

 

 

We use the word “expert” advisedly here, as in our experience, many law firms – even those specialising in employment law – do not have real experts in employee race discrimination. (See below for more on legal representation.)

 

 

 

 

Making a data subject access request

 

 

We would almost always recommend making an application under the General Data Protection Regulation (DSAR). This will allow you to find out what information the employer holds about you. In many instances, such an application will uncover important evidence of racial discrimination and victimisation.

 

 

The timing of the request is often key.  So are the terms of reference, which can be very technical, especially when dealing with a large organisation.

 

 

It is advised that you obtain the terms of reference of the search from the company, to investigate the thoroughness of that search once the results have been disclosed.

 

 

In our experience employers will try to use devices such as legal privilege, confidentiality, and relevance, in attempting to withhold documentation that is prejudicial to the company and which could be considered evidence in a serious claim of discrimination.

 

 

The failure of a company to properly deal with a DSAR in a case of race discrimination could lead to further complaints of less favourable treatment and victimisation.

 

 

Victimisation

 

 

Often, someone raising a grievance alleging discrimination will have also suffered a ‘detriment’ (ie harm or loss of some kind) as a consequence of doing so. Raising a grievance or bringing proceedings against an employer for race discrimination is a ‘protected act’ for the purposes of the Equality Act 2010. 

 

 

So if you suffer a detriment because you have done a protected act, then you have a claim for victimisation.

 

 

Victimisation is essentially retaliatory conduct, and the detriment suffered must be linked to the employer, or to other employees, who are retaliating against you because you have done a protected act – such as raising a grievance alleging race discrimination.

 

 

A detriment could be anything, but being ostracised at work, having false allegations made against you, and being placed on performance management are some of the most common examples.

 

 

What to expect from your race discrimination case

 

 

Cases of race discrimination call for serious consideration of both short and long-term tactics, depending on your specific needs and circumstances. These can be divided into two main scenarios:

 

 

The first scenario is where you have suffered discrimination, wish to raise the issues with your employer, but then move on, as you believe you can obtain another role relatively quickly.

 

 

The second scenario is where you have been discriminated against to such an extent that your mental health has deteriorated and your future has been adversely affected by your treatment.

 

 

While we are always led by our clients, in the first scenario, we would look to achieve the best possible settlement for any claims against the employer via negotiation. In the second scenario, however, we would strongly advise our clients to litigate their claims to the fullest possible extent.

 

 

What is the value of your race discrimination case?

 

 

The value of a case of racial discrimination depends on many factors, including your salary, the nature of the discrimination you have suffered, any ‘injury’ (ie mental health injury) suffered, and your future employment prospects. So, there is no straightforward answer to such a question.

 

 

The tactics and costs structures put into place by your lawyer should suit the nature of your case. The goal is to achieve financial compensation sufficient to secure your transition to a new role, or the next step in your life, whatever that may be.

 

 

Can you conduct your race discrimination case yourself?

 

 

You may note that our website is designed to help employees like you to help themselves in their legal employment cases.  We do this by providing sufficient information and other materials so that you can take on your employer and win without having to worry about the costs of hiring a solicitor.

 

 

However, when it comes to race discrimination, we advise that you need to engage a suitably qualified and experienced solicitor.  If you have a good case, you will most likely be able to negotiate some kind of ‘no win, no fee’ representation deal so you will be able to afford it.

 

 

The issue of race discrimination is too important, too inflammatory politically, and too technical, for anyone to deal with who does not have a decade or more of experience of these cases.

 

 

Your employer will likely engage a highly intelligent team of lawyers from an expensive corporate law firm to defend the allegations that you bring. These lawyers will work to defeat your claims or force you to under-settle your case. You need the best representation that the value of your case affords in order successfully to fight your case.

 

 

How to choose a good race discrimination lawyer

 

 

Choosing the right employment law firm to help you with your race discrimination case is critical to the outcome of your claim, so you need to choose with care.

 

 

People being discriminated against in large organisations tend (not surprisingly) to ask colleagues or other people working in similar organisations to recommend a lawyer to them.

 

 

The problem here is that the lawyers being recommended are likely to be lawyers who usually advise employers, rather than employees like you.

 

 

This can lead to the legal advice given in cases being under-settled (ie settled below their potential or real financial worth).

 

 

Under-settlement also happens when the advising lawyers are afraid of causing upset or offence or bad publicity to multinational corporations, as well as for other reasons such as insufficient relevant experience.

 

 

This is ongoing in the UK and lawyers who work or have worked for large law firms are at least partially responsible for this, whether they realise it or not.

 

 

If you are experiencing race discrimination in your workplace, we would strongly advise that you thoroughly explore the career and the history of the lawyer you propose to instruct for your case. This is to ensure that the lawyer has sufficient experience of fighting discrimination cases on behalf of employees without fear or favour.

 

 

Next steps

 

 

In all the cases of race discrimination in which Monaco Solicitors have acted, our clients have secured significant sums in compensation. We do not under-settle cases.

 

 

So if you think you need legal representation for a case of race discrimination, you might like to get in touch. Our team is friendly and highly professional and our terms – which include ‘no-win no-fee’ rates – are flexible and fair.

 

 

Monaco Solicitors.