Marsha Thompson answers your questions on race discrimination.
Q: I am considering employing a number of migrant workers from Poland. I want to check they are working here legally, but is there a risk I could be accused of race discrimination?
MT: You are right to be cautious. It is a criminal offence to employ individuals who do not have the right to live and work in the UK. But you also need to be careful not to treat foreign national job seekers less favourably. The Home Office has published a Code of Practice to help employers meet the provisions of the Asylum and Immigration Act 1996 without carrying out practices that could amount to unlawful race discrimination.
In general, it is good practice to ensure all new employees, regardless of nationality or race, are asked to provide the requisite documentation to prove their eligibility to work in the UK. This will help avoid claims of discrimination.
Q: A small group of employees regularly make jokes directed at a recently hired Indian employee. He has raised a grievance as he finds it offensive. However, the group involved say it is harmless ‘banter’. This is causing a lot of problems. Can I dismiss the Indian employee because he cannot adapt to this working environment?
MT: On no account should you dismiss the aggrieved. Although the employee cannot bring a claim for unfair dismissal as he has not completed one-year’s service, he could bring a claim for race discrimination which has no qualifying period of service. It is likely that his colleagues’ behaviour would be deemed to amount to racial harassment as he clearly finds the content offensive and unwanted and has formalised his reaction by bringing a formal grievance. We advise the following approach:
- Carry out a thorough investigation, preferably by an independent staff member (this is essential under the statutory grievance procedure)
- Hold a grievance meeting, where the employee has the right to be accompanied, to explore the grievance in detail
- Consider all the evidence before deciding whether to uphold the grievance
- Communicate the decision in writing
- Give the employee the right to appeal to a separate senior manager (in small companies it may not be possible to separate these roles)
We strongly advise that the company make it clear to all staff that this sort of behaviour will not be tolerated. You should also consider whether disciplinary action against those involved is necessary. Equality and diversity training and the introduction of an equality and diversity policy will help to prevent a repeat of this type of incident. Only by taking these steps can you avoid being held vicariously responsible for the actions of your employees in this or any future discrimination claims.
See also: our Race Discrimination page.
This article was published in The Argus in September 2008
The information in this article is provided as general guidance only. The law in this area is regularly subject to change, challenge and update. You should always check the up-to-date position and if appropriate seek further specialist advice.
