While we hope it never occurs, some MiP members will have to investigate allegations of race discrimination or sit on grievance panels adjudicating on race discrimination complaints. Unfortunately, complaints like these do happen and it is important that managers are aware of how they should deal with it, the protocols to follow and the pitfalls to look out for.
Under the Equality Act 2010, 'protected characteristics', such as race, are protected from direct and indirect discrimination, harassment and victimisation. This means that employees cannot be discriminated against because of their race in the workplace – whether in recruitment or promotion, during training, or in dismissal and redundancy processes. Members should also be aware that the law does not only apply to 'employees' as narrowly defined. Interns, apprentices and self-employed contractors are also covered.
Public sector bodies, including the NHS, are under a duty to consider equality when making all decisions on service delivery and employment. This means that public bodies must give due regard to the need to:
- eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act
- advance equality of opportunity between people from different groups
- foster good relations between people from different groups
If an employee makes a claim of race discrimination, it is vital that the complaint is dealt with seriously and promptly. Many employees may 'suffer in silence' for a period of time if they feel they have been discriminated against, so it is important that, when and if they do come forward, there is no hesitation in investigating the issue. Once a complaint has been made, it is important to be receptive to the employee and make a note of every piece of information given. This can give you a clear picture of the issue in hand and makes it easier to pass on the information to the relevant managers.
You should be seeking advice from HR professionals in your organisation at an early stage. They should have the expertise on how to deal with the complaint and what to do next. It is important there is no delay in progressing a complaint as inaction can lead to further problems and could exacerbate the situation. It should be reported to the most senior level of management possible.
Managers should always keep records of the procedures followed in dealing with the complaint and how quickly it has been progressed. If an employee feels their grievance has not been handled fairly, these records could be an important piece of evidence in the event of an employment tribunal.
While it can be hard for an employee to prove that they have been discriminated against because of their race, a complaint which is not dealt with correctly may affect relations between the employee and their employer and could influence the tribunal proceedings and the final decision.
Managers should be aware of the damage a finding of discrimination can do to individuals and organisations. If a complaint is upheld in an employment tribunal and an individual is found to have been discriminatory, this will have a direct effect on the reputation of both the individual and the organisation involved. There is also no legal limit on the compensation that can be awarded in discrimination cases.
Litigation can be extremely costly, time consuming and stressful for all concerned. Therefore where possible, employers may wish to consider mediation to resolve matters. Obviously, this will only be fruitful if the employee is open to it. When effective, mediation can result in a mutually agreed outcome that provides the employee with the assurances and resolution they are seeking. However, if a successful mediation cannot be achieved, senior management will advise on the next stage of the process and the employee should be informed in writing.
In summary, all claims of race discrimination should be dealt with promptly and professionally, and by following your organisation's approved processes. Only by following the correct procedures can the best outcome be reached.
Rakesh Patel is head of employment rights strategy at Thompsons Solicitors. Legal Eye does not offer legal advice on individual cases. MiP members in need of personal advice should immediately contact their MiP rep or national officer.