Current position
Key legislation
What employers must do
Implications
Issues
Shared learning
More information
The Race Relations Act 1976 (amended in 2000), makes it unlawful to treat a person less favourably on racial grounds, covers grounds of race, colour, nationality (including citizenship) and national or ethnic origin.
The Race Relations (Amendment) Act 2001 extended the scope of the Race Relations Act, placing a duty on trusts to promote racial equality:
- General duty - have due regard to the need to eliminate unlawful racial discrimination and to promote equality of opportunity, and good race relations between people of different racial groups
- Specific duties - a new definition of indirect discrimination. In addition to the existing ‘formal’ practices, more informal practices are covered and increases the scope for claims of indirect discrimination.
More specifically for employers:
- Shift of the burden of proof – now when a claimant establishes a prima facie case of racial discrimination or harassment the tribunal or court will uphold the complaint in the absence of a satisfactory explanation
- A widening of the application of ‘general occupational requirement’ where it is applied appropriately
- Extension of rights to cover relationships that have come to an end – e.g. where an employer provides an unfair reference for an ex-employee that is racially motivated
NHS trusts as public authorities have general duties in carrying out their functions and are required to:
- eliminate unlawful racial discrimination
- promote equality of opportunity and good race relations between persons of different racial groups
Specific duties are also placed on trusts to help them meet the general duty. These include:
- having a separate race equality scheme, or as part of a single equality scheme with an annual report each year
- assessing which functions and policies are relevant to the general duty
- monitoring the negative effect of policies and services
- assessing and consulting on policies and proposals for adoption
- publishing the results of any assessments, consultation and monitoring
- making sure that the public have access to information and services
- training and briefing staff
Key considerations for trusts are outlined below:
- Leadership and commitment – trust board and senior managers need to demonstrate a clear public commitment to tackling racial discrimination and promoting race equality
- Develop race equality scheme/single equality scheme – setting out the organisations arrangements/accountability and outcomes in terms of race equality
- Ensure impact assessments – review the impact of policies on race equality at every stage of development, using the views of staff/patients and other key stakeholders to shape policy and practice
- Integrate into business planning and governance – both specific and general duties are mainstreamed into all strategies and policies and performance management structures.
- Monitoring - having systems in place to monitor the impact of policies on staff from different racial groups taking into account in terms of employment factors e.g. staff in post, recruitment, retention, progression, receiving training etc.
- Consider using positive action - use data on local communities and comparable data on staffing in further education nationally, to identify and remedy disparities and possible barriers to equality of opportunity
- Develop support networks – these can support staff people from black minority ethnic (BME) backgrounds to meet and contribute to the working of the trust, as well as support each other
- Research shows there is still an under representation of BME staff at the more senior levels of the NHS
- There is also still evidence of particular BME communities not receiving the same level of service as others
- As the largest employer in Europe, the NHS has a key role in addressing discrimination that is identified
Case law
Recent case law has centred on arms lengths bodies and the definition of ‘race’:
Leeds City Council v 1) Woodhouse and 2) West North West Homes Leeds (2009)
Woodhouse alleged he had been racially abused by a council staff member and claimed racial discrimination against the council and his employer West North West Homes, an arm’s-length management organisation (Almo). The council’s request that it should be excluded from the claim was rejected by the tribunal because the council’s relationship with the Almo was “extremely close”.
Okonu v G4S Security Services (UK) Ltd (2009)
The UK incorporated the race section of the EU framework directive into UK law by regulation (rather than act of Parliament) and regulations cannot exceed the requirements of the directive. The new regulations shifted the burden of proof to the employer, once the employee has produced evidence of discrimination.
However, the directive’s definition of race is narrow – ‘racial or ethnic origin’ – compared to the UK’s which includes ‘nationality and colour’. Because the regulation cannot exceed the directive, the new burden of proof did not apply to this case because the individual had based his race discrimination claim on being a black African from Nigeria.
Some examples of good practice on race are available in our shared learning web pages including:
- Portsmouth Hospitals NHS Trust – the trust’s Positive Action Through Health scheme (PATH) created a positive reputation of the trust within the community, as a good employer, to encourage take up from BME groups.
- The Royal Free Hampstead NHS Trust - an initiative ensured that all consultant medical staff had an understanding and awareness of current equal opportunities legislation and trust policy, before participating in selection panels.
- Royal United Hospital Bath NHS Trust – the trust actively canvassed the views of black and minority ethnic (BME) staff to source current data and track progress against the Standards for Better Health.
- NHS Lincolnshire - the trust developed a staff awareness programme called ‘a Taste of Poland' to make their staff aware of how to engage with new migrant communities, to provide them with local information and understand their service needs.
- Royal Liverpool and Broadgreen University Hospitals NHS Trust - this trust benchmarked themselves on race and employment against other large employers in their locality to get valuable quantitative data. The trust used this to set targets on the workforce profile for certain groups as well as identify particular problems around data collection and benchmarking