Our work has made us all too aware of the pervasive nature of race discrimination in the workplace. In the last few years, we’ve supported workers who have been told to “go home” because of the colour of their skin; healthcare workers who’ve been suspended from work because patients refuse to be treated by black clinicians; workers with perfect English whose confidence is chipped away as they have their pronunciation corrected on a daily basis; and those who’ve been unfairly disciplined because a reasonable explanation is less likely to be believed if it’s delivered in a foreign accent.
The death of George Floyd and the Black Lives Matter protests have placed a welcome focus on race discrimination. But, as many black, Asian and minority ethnic (BAME) voices have commented, action is what is needed. So what practical steps should we take to bolster existing discrimination law?
The Equality Act 2010 allows individuals to bring workplace race discrimination claims. That means claims of being treated differently because of race, being harassed because of race, or being impacted negatively by a policy that applies to all staff but puts workers of a particular racial group at a disadvantage. However, the statistics show that, from January to June 2019, only 1655 claims of race discrimination were raised in the Employment Tribunal. This is less than half the number of claims for disability discrimination and sex discrimination. Why are so few race discrimination claims being raised?
One problem is because a victim only has 3 months minus 1 day from the date of the act of discrimination to raise a claim. For most workers who are discriminated against, it is a hugely traumatic event. It may take several months before the victim can even think about enforcing their legal rights. Before doing so, most people will raise the issue with their employer. But they may not be believed, incidents will be covered up and claimants are often victimised for raising the complaint in the first place. These delays mean that when victims are finally ready to enforce their rights using existing discrimination laws, they’re usually too late.
A significant extension of existing time limits is therefore needed to ensure that workers who suffer race discrimination have the time and space to properly enforce their rights.
Even if a claim is raised in time, the costs of running a discrimination claim are prohibitive. Unless you’re wealthy and can afford your own lawyer (or are a member of a trades union who will support the case financially), the cost of bringing a claim is out of reach for most workers. While employees can represent themselves, this often leads to an inequality of arms: employers instruct expensive lawyers and the victims try to run the case themselves. Can we really expect race discrimination to be effectively challenged if BAME workers are expected to stand alone and navigate the courts all by themselves?
We therefore need claimants in all discrimination claims to be granted automatic legal aid. The discriminator should be forced to repay all the legal costs if the victim’s claim is successful and the claimant should not have to pay the discriminator’s legal costs if the claim fails. This has always worked well with health and safety law, so why not here?
Significant court reform is also required. There should be a specialist discrimination and equalities court, giving all cases of discrimination the specialist judicial treatment they require and the profile and prominence which comes from being a stand-alone court. If the wealthy can rely on a specialist Tax Tribunal to deal with disputes about their money, why can BAME citizens not have their own specialist court to resolve problems of discrimination?
Finally, there are simple enforcement measures- like mandatory and meaningful Ethnicity Pay Gap reporting- which would shine a proper light on the extent of BAME discrimination in the workplace. If BAME workers don’t have access to the evidence they need to prove that they are being treated less favourably, they will never be able to enforce their existing rights.
The collective shrug of the shoulders by policymakers in response to the Black Lives Matters campaign cannot be allowed to stand. There are plenty of simple, practical steps which can be taken now- in this Parliament- to breathe life into the existing legal protections around race. We encourage policy makers to stop issuing warm words in support of BAME rights and to take these practical steps now.