CONTENTS

Background

Changes to the law on racial discrimination

Key improvements

Race specific issues

BACKGROUND 

On 17 June 1997 the governments of the fifteen Member States of the European Union revised the Treaty of the European Community at Amsterdam. Article 13 of the Treaty provides a legal base for Community action to combat discrimination on the grounds of racial or ethnic origin.

On 25 November 1999 the European Commission published a package of draft proposals to combat discrimination under Article 13. Included in the package was a draft Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.

The Directive ("the Race Directive") was agreed unanimously at the European Social Affairs Council on 6 June 2000 and published in the official journal of the European Communities on 19 July 2000 as Directive no.2000/43/EC. It was agreed that Member States would implement the Directive within 3 years of its publication: 19 July 2003.

Race directive

The Race Directive flows from Article 13 of the Treaty of Amsterdam and is largely based on the Race Relations Act 1976 ("the 1976 Act"). It is being implemented together with the Article 13 Employment Directive ("the Employment Directive"), which introduces new employment legislation dealing with discrimination or harassment on grounds of sexual orientation, religion or belief, and age, as well as amending the employment provisions of the Disability Discrimination Act.

The Race Directive introduces a minimum standard of protection from race discrimination across Europe. The Directive will be of considerable benefit to UK citizens who wish to travel, live or work in the European Union. It will help to facilitate free movement of persons throughout the EU and limit unfair competition based on racial discrimination.

CHANGES TO THE LAW ON RACIAL DISCRIMINATION

Since 1976, important changes have been made to the Race Relations Act 1976. In 2000, the Race Relations (Amendment) Act 2000 improved the 1976 Act. It prohibits racial discrimination in all public functions, including the police, with only a few limited exceptions. A large number of public bodies were made subject to a statutory general duty to promote race equality. Key public bodies were additionally made subject to specific duties.

The government has now introduced these regulations to further improve the 1976 Act. These regulations relate to discrimination and harassment on the grounds of race, ethnic or national origins ("the relevant grounds"), and will help to ensure that Britain meets minimum standards of legal protection from racial discrimination across Europe.

Key improvements have been made in discrimination law by these regulations: such as a new definition of indirect discrimination, a definition of harassment and a statutory change relating to the burden of proof. These changes will enhance the lives of individuals in Britain.

Some improvements stem from both the Employment and the Race Directives. These cross-cutting issues cover:

• Indirect discrimination
• Harassment
• Genuine occupational requirement
• Private households
• Discrimination or harassment after the relationship has ended
• Barristers and advocates: complaints
• Burden of proof
• Questionnaire procedure
• Office holders

Some amendments are specific to race discrimination issues. Equality laws in the UK have established the principle that everyone should be treated equally. However there are some sections of the 1976 Act which do allow certain people to be treated differently. The Directive asks us to change or get rid of these laws if they have a harmful discriminatory effect. This is to comply with the Directive's requirement that Member States abolish any provisions contrary to the principle of equal treatment. In order for the government to comply with this provision, certain exemptions have now been removed in so far as they apply in relation to the relevant grounds.

These race specific issues are:

• Training for those not ordinarily in the UK
• Partnerships
• Small dwellings
• Charities in their role as employers
• Seafarers recruited overseas

KEY IMPROVEMENTS

New definition of indirect discrimination

Previously, indirect discrimination has occurred where a person applied a 'condition or requirement' which was apparently neutral but which did, or could, in fact put people of a particular racial or ethnic origin at a disadvantage, and which could not be justified on other grounds.

The new definition replaces "condition or requirement" with the phrase "provision, criterion or practice" so far as discrimination on the relevant grounds is concerned. The new definition will cover formal requirements, conditions and provisions, as well as informal practices, thus widening the circumstances where indirect discrimination could occur. Such discrimination is unlawful unless it can be justified on other grounds.

Previously, the 1976 Act has required the complainant or claimant to show that a considerably smaller proportion of a particular racial group could comply with a requirement or condition. Demonstrating that usually involved a reliance on the use of statistical evidence.

The new definition of indirect discrimination makes it easier to use non-statistical evidence to establish a case, instead of solely statistical evidence, in cases involving the relevant grounds. The Directive enables Member States to allow indirect discrimination to be established without the need to produce statistical evidence.

Statutory prohibition of harassment

Previously racial harassment has not been expressly defined in the 1976 Act. However UK case law already considers harassment to be a form of unlawful direct discrimination in so far as it applies in situations where unwanted conduct violates someone's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for someone.

In order to avoid reducing existing protection afforded by domestic law, we are introducing the existing case law definition into the 1976 Act, in respect of claims brought on the relevant grounds.

The regulations therefore insert in the 1976 Act a definition of harassment as occurring when unwanted conduct, based on the relevant grounds, has the purpose or effect of violating someone's dignity or creating an environment that is intimidating, hostile, degrading, humiliating or offensive to someone.

When assessing the effect of such conduct on someone the court or tribunal will be able to take into account his/her perception of it, alongside other relevant factors.

Genuine occupational requirement

Section 5 of the 1976 Act lists specific jobs where being of a particular racial group is a genuine occupational qualification for one of those jobs. For example, it could be specified that waiters in a Chinese restaurant were of Chinese origin because the employer wanted to create an authentic atmosphere. Or a theatre could specify that an actor playing Martin Luther King was of Afro-Caribbean origin.

In order to comply with Article 4 of the Race Directive, which introduces the new concept of a genuine occupational requirement, section 5 of the 1976 Act is repealed in respect of the relevant grounds. In its place the government has introduced an exception based on genuine occupational requirements.

Employers will be able to recruit staff on the basis of a genuine occupational requirement if it can be shown that it is a genuine and determining requirement of the job to be of a particular race or of particular ethnic or national origins. In cases involving colour or nationality the existing provisions in section 5 of the 1976 Act will continue to apply.

Private Households

Previously, private households have been exempt from the provisions of the 1976 Act in that they could discriminate when employing persons to work in the home. The regulations remove this exemption in so far as it relates to the relevant grounds.

As a consequence, discrimination in employment in a private household (for example, employment as a nanny, cleaner, or gardener), on the relevant grounds, will no longer be allowed. This will enhance the rights of the people who work in these fields. The changes are being made as a result of the need to abolish any laws contrary to the principle of equal treatment.

Agencies and private employers who recruit someone to work in a private household will no longer be able to discriminate, on the relevant grounds, in whom they select for employment. There is no distinction between employment in private households and other employment in the terms of the Race and Employment Directives.

However, when it is genuinely necessary for a person to be of a particular race or of particular ethnic or national origins in order to carry out particular employment, an employer may be able to rely on the new genuine occupational requirements provisions of the 1976 Act. The private household exemption will remain in respect of discrimination on the grounds of colour or nationality.

Discrimination after the relationship has ended

Previously, the 1976 Act has applied only to acts of discrimination occurring during the relevant relationship (e.g. employer/employee or any other relationship covered by the 1976 Act, during the course of which an act of discrimination or harassment directed by one party against another is unlawful). This has been the case regardless of whether the complaint or claim was brought during the relationship or after it had ended (providing it was within 3 months of the last act complained of).

The new provisions allow a complaint or claim to be brought in respect of an act of discrimination or harassment which occurs after such a relationship has ended. It will be unlawful for employers to discriminate or harass (for example, in the giving of references,) merely because employment has ended.

Barristers and Advocates: complaints

Previously, claims of discrimination by/or against barristers and advocates under the 1976 Act have been heard in the County Courts.

The regulations amend the 1976 Act to allow for complaints or claims of unlawful discrimination and harassment by/or against barristers and advocates to be brought before employment tribunals. This will only apply in relation to the relevant grounds. This will bring barristers and advocates into line with the provisions relating to employment, so far as the bringing of complaints on such grounds is concerned.

Burden of proof

Previously, under the 1976 Act, it has been the responsibility of the complainant or claimant to establish that he or she has been discriminated against or harassed. A tribunal or a court could only draw inferences from a respondent's failure to answer or put forward a defence.

Now, once the complainant or claimant has established a prima facie case, the onus is on the person alleged to have committed the act of unlawful discrimination or harassment to prove that he/she did not commit such an act. The change will apply only in respect of complaints or claims brought on the relevant grounds.

If there is a case to answer and the respondent has not brought forward a satisfactory defence, or fails to respond, the tribunal or court will find against the respondent.

Questionnaire procedure

Section 65 of the 1976 Act provides for a questionnaire procedure whereby an aggrieved person can question the respondent in alleged cases of discrimination. Previously, there has been no time limit within which the respondent had to reply, but merely a 'reasonable period', after which the court or tribunal could draw adverse inferences from the respondent's lack of response.

The new provisions establish a new eight-week limit for respondents to reply to aggrieved persons' questions about alleged acts of discrimination or harassment on the relevant grounds.

The new provision provides clarity by not leaving it to the courts to decide what is a 'reasonable period' within which respondents have to reply. Another benefit is that cases will now progress and be resolved more quickly.

Office holders

Previously, the provisions of the 1976 Act have applied only to appointments of office holders made by a Minster of the Crown or a Government department (where such appointments were not already covered by the employment provisions of the Act). The regulations apply the provisions of the 1976 Act to other appointments of office holders (in so far as the employment provisions of the Act do not already apply) so as to bring the Act into line with the legislation implementing the Employment Directive in this respect.

RACE SPECIFIC ISSUES

Article 14 of the Directive requires Member States to "take necessary measures to ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished". In order to comply with this requirement, we have removed, at least partially, some of the exemptions in the 1976 Act.

Training for those not ordinarily resident in Great Britain

British employers have been allowed to discriminate on racial grounds when employing people who come to this country to learn new skills and then return to their own country or elsewhere to use those skills. The regulations remove this ability to discriminate in so far as it relates to the relevant grounds. It will still, however, be possible to provide these skills to someone on the basis of their nationality or colour.

Charities as employers

Previously, charities have not been subject to the employment provisions of the 1976 Act. Charities that targeted their benefits at particular racial groups were able to recruit staff from a particular racial group.

As a result of the partial repeal of this exemption, charities will now be subject to the employment provisions in the 1976 Act in the same way as other employers, so far as discrimination or harassment on the relevant grounds is concerned. Charities will be able to rely on genuine occupational requirements when recruiting staff to undertake certain roles where the nature of the employment requires someone of a particular race or of particular ethnic or national origins.

Charities will continue to be able to rely on the existing exemption for the purpose of recruiting staff who need to be of a particular nationality, as the ground of nationality is excluded from the scope of the Directive.

Seafarers recruited overseas

Section 9 of the 1976 Act provided an exemption in respect of the employment of seafarers. There is provision in the 1976 Act (section 73) for amendment or removal of section 9 by a separate order.

The government has amended section 9, by virtue of such an Order, to ensure that employers will no longer be allowed to discriminate on the grounds of race, ethnic or national origins or colour in relation to the employment of seafarers recruited overseas. They will only be able to discriminate on the grounds of nationality, and only in relation to remuneration.

Partnerships

Section 10 of the 1976 Act (concerning discrimination in or by partnerships) provided that partnerships of fewer than six persons were exempt from its provisions.

The regulations remove this exemption in relation to the relevant grounds. Now, partnerships of any size are subject to the same rules under the 1976 Act in relation to discrimination on those grounds.

Small dwellings

Previously, landlords who dispose of or manage small dwellings have been exempt from the provisions of the 1976 Act. Under that Act "small dwellings" are dwellings in premises which are shared, at least in part (e.g. kitchen or washroom), with the landlord or his family and which accommodate up to two other households or up to six other people, as the case may be. This has meant that landlords who rented out such dwellings were able to discriminate when doing so.

The regulations remove this exemption in so far as it relates to the relevant grounds. A landlord who wishes to rent out a room within a property, in which he or his family live, and share facilities with other tenants, will no longer be able to discriminate on the relevant grounds.

This change will bring the housing provisions of the 1976 Act more in line with the provisions dealing with private household employment.