“My colleague is racist”
Racial discrimination is against the law. For the purposes of the Equality Act 2010, ‘race’ includes colour, nationality, and ethnic or national origins.
The Act protects all employees whether fixed-term or temporary), as well as job applicants, trainees, contract workers, company directors, partners, people on secondment and those who are self-employed.
Direct discrimination
Racist behaviour at work could include:
- The way you are treated at interview stage
- Not being offered the job
- Being offered less favourable terms of employment
- Being overlooked for promotion, transfer and/or training
- Being denied certain benefits
- Having your work monitored or criticised excessively
- Being bullied in the workplace
- Being called racist names at work
- Being subjected to abusive language, racial ‘jokes’ and ‘banter’
- Being the subject of offensive tweets, text messages and social media posts
- Being unfairly dismissed
- Being wrongfully selected for redundancy or early retirement
It would count as direct discrimination if you experience unfavourable treatment because of your race, your perceived race, or the race of someone you associate with.
However, direct discrimination can be difficult to prove, because the treatment suffered is not always blatant and employers will almost always deny that race was the reason behind what happened.
Discrimination by third parties
Your employer can be liable whether the discrimination was by their employees in the workplace, or (in some circumstances), by a third party they don’t employ, such as customers or suppliers.
Your employer may be liable if they knew (or ought to have known) that you have been harassed at work by a third party at least twice (not necessarily the same third party or the same form of harassment on each occasion), and they failed to take reasonable steps to prevent it happening again.
Indirect discrimination
If your employer operates a policy that disadvantages ethnic minorities, it counts as indirect discrimination unless it can be ‘objectively justified’.
For example, it would be indirect discrimination if they have a policy stating that male members of staff must be clean shaven, as this puts members of certain religious sects at a disadvantage.
The onus is on the employer to prove that the discrimination is a ‘proportionate means of achieving a legitimate aim’. For example, discrimination would be allowed in jobs where a person of a racial group is required for authenticity, such as an Indian waiter for an Indian restaurant; an actor or model for a racially specific role; or someone from a specific ethnic minority to provide personal welfare services within that group.
Discrimination that’s not directed at you
What if you’re white, working with all-white workmates, and a colleague makes a racist statement?
Under Section 26 of the Equality Act 2010, it could count as harassment if their conduct is unwanted and has the purpose or effect of violating your dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for you.
This means you don’t need to be the same race as the one that is being denigrated.
The Act also protects you if you are treated less favourably because you made, tried to make, or helped someone else to make a complaint of race discrimination (even if it was their perception and not reality). This would count as victimisation and you could make a claim.
What to do if you have a racist colleague
If you witness or experience racism at work, keep written notes of exactly who said or did what, and when. Keep copies of offensive messages. Also make a written record of what you did or said in response.
If appropriate, you might try to confront the offender directly, in a polite and constructive way. You could then raise the issue with your manager or your union representative.
Your employer should have an Equal Opportunities policy in place that bans discrimination, bullying and harassment of staff, customers and suppliers. Check your staff handbook for details. It will explain the grievance procedure – make sure you follow it when you make your complaint.
Once you’ve made a formal complaint of racial harassment, your employer should also follow the procedure. Here are some of the things that might happen:
- Your employer should conduct an investigation leading to a formal warning or even dismissal of the perpetrator/s (if they’re found guilty)
- Your employer might provide diversity training for them, or for all staff
- You could receive a formal apology
If you’re not satisfied, you should then go through the Acas early conciliation process. This is free.
Racial discrimination and the employment tribunal
After that, you can take your complaint to the employment tribunal. Note there are strict time limits for this – you must act within three months from the most recent date of the discrimination.
You can contact us for help and advice at any stage – we’re employment lawyers who act for employees, not employers. We’ll help you build your case and advise your chances of success.
You will have to provide satisfactory evidence that you were discriminated against, and your employer will attempt to prove there was no racial discrimination, and / or that that they took all reasonably practicable steps to prevent discrimination.
If you win, the tribunal might award you compensation and make a recommendation that your employer should take steps to remove or reduce the discrimination.
There is no ceiling to the amount of compensation you might win. It usually includes an award for injury to feelings and an award to cover any loss you’ve suffered, such as wages or pension.
The Court of Appeal have set out compensation guidelines for injury to feelings, depending on the seriousness of the case. These are commonly known as the ‘Vento’ guidelines. As from 6 April 2022, they are:
- Top band for serious cases: £29,600 – £49,300 (compensation can exceed this in exceptional cases)
- Middle band: £9,900 to £29,600
- Lower band for less serious cases e.g. one-off or isolated incident: £990 – £9,900
Related reading
If you found this information useful, you might also like to read our related articles:
- I’m paid less because of my race
- Race discrimination. Has it happened to you?
- When does race discrimination occur?
- Race discrimination at work
- What to do if you are harassed at work
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