Race discrimination in the workplace

This article briefly considers what is meant by race discrimination in white collar work environments. It guides you through the experience of a BAME (black, Asian and minority ethnic) employee being subjected to race discrimination, and advises you what to do if you are being racially discriminated against at work.

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

 

Race discrimination claims

Race discrimination in employment is one of the most serious, if not the most serious, of all claims that can be brought in an employment tribunal.

In broad terms, the majority of claims of race discrimination in employment nowadays are for:

  • ‘direct’ race discrimination, where somone is treated less favourably than others because of their race, or because of 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 perhaps for helping someone who is being discriminated against.

 

  • ‘indirect’ racial discrimination, where an employer has a rule, 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 highest value and highest profile race discrimination cases in the City of London in recent years, all of which settled prior to trial, and some for amounts approaching £1,000,000.

Our opponents have been some of the largest banks, insurance companies and financial institutions in the world. We almost certainly have the most extensive experience of race discrimination cases of any employment law firm in the UK who represents employees only.

As a result of our extensive experience, we are well placed to delve more deeply into the complexities of race discrimination than you will find on 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?

In the modern white-collar world, race discrimination is very rarely overt. If it were, then BAME workers would not receive job offers or achieve positions of influence in large organisations 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 judge individuals on the merits of their application, or because they recognise the need for and benefits of institutional diversity.

What triggers race discrimination against an individual employee?

Regardless of the intentions of all parties at the outset of employment, it is usually once you have been employed for a few years that issues start if there are racist individuals in the organisation, or if the organisation itself is institutionally racist.

In our experience of a typical race discrimination case, you, as the employee discriminated against, have a normal working relationship with your managers and colleagues and do not perceive race discrimination in any way until, that is, something untoward happens.

The event that triggers racial discrimination against you in a professional environment could be anything, but we have observed that it’s usually if you do something out of the ordinary, thereby seeming to challenge authority.

Perceived challenges to authority by BAME employees

The identity of the authority 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 fellow colleagues, or even applying for a promotion.

 

All these scenarios has triggered serious cases of race discrimination in cases 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

At that point, it seems that your race becomes an issue, whereas previously it was not. In other words, an employer is quite happy to employ BAME individuals when they keep their heads down in the office. However, when they assert themselves in a manner that is perceived to be beyond their station, they leave themselves vulnerable to discrimination.

In our experience, that 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 talking amongst themselves about your behaviour, linked to the event in which you were perceived to have challenged authority.

If such senior colleagues begin to agree with one another about your behaviour, it forms 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, he or she will eventually air them or intimate them. That is racial discrimination.

When you first become aware of being discriminated against

You would usually be unaware at this stage that such conversations were taking place. Your first hint that something wasn’t right would usually be when you were singled out for something, or started to be treated slightly differently and less favourably than colleagues.

It’s usually very subtle and the person treating you less favourably may not even realise they are doing it, but they are influenced by the closed discussions they are privy to.

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

In these circumstances, you are likely to start making subtle enquiries about what you may have done wrong to be singled out, or you may ignore it all and hope 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 we know of like this, include open discussions about certain areas of large towns and cities 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

It is sometimes the case that 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 been used openly on the office floor or an employee has 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 now suffer one or more serious incidents of race discrimination. If you have raised complaints about your treatment, you may also be on the receiving end of 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 of wrongdoing;

 

  • been denied their employment rights, including the loss of or reductions in bonuses and similar. 

 

It is absolutely vital that you seek legal advice at this stage as time-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

It is likely at this stage that you, as a victim of race discrimination, 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 you need to take in most circumstances, and we would recommend it in all but the most extreme cases, as it can affect levels of compensation.

The grievance complaint is also an important document that is 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 a solicitor who is an expert in this field 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 actually 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). By this means you can find out what information the employer holds about you. In many instances such an application uncovers 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 often wise to obtain the terms of reference of the search from the company, and then 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 an attempt to withhold documentation that is prejudicial to the company and which could support a serious claim of discrimination.

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

Victimisation

It is often the case that someone raising a grievance alleging discrimination will suffer a ‘detriment’ (ie harm or loss of some kind) because they have done 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. 

This means that, if you suffer a detriment because you have done this protected act, then you have a legitimate claim for victimisation.

Victimisation is essentially retaliatory conduct, and the detriment must be linked to the employer, or to other employees, who are retaliating against you because you have done the protected act – such as raise 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 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.  Such tactics depend on your specific needs and circumstance, but 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 elsewhere, 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 you are suffering severe mental health consequences and your future has been adversely affected by your treatment.

While we are always led by our clients, in the first scenario above, we would look to settle any claims against the employer via negotiation and to achieve the best possible result. In the second, 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 your case 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 any lawyer you engage 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 own race discrimination case?

You may note that the rest of 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 material so that you can take on your employer and win without having to worry about the costs of hiring a solicitor.

However, our firm advice is that when it comes to race discrimination, 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, and 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 engage a highly intelligent team of lawyers from an expensive corporate law firm to resist and defend the allegations that you bring. These lawyers will work tirelessly 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 a successful claim outcome, 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 to employees experiencing race discrimination resulting in cases being under-settled (ie settled below their potential or real financial worth).

Under-settlement also happens when those lawyers giving the advice 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 you to explore thoroughly the career and the history of the lawyer you propose to instruct to deal with your case. You should 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.

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