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Race discrimination



The Equality Act 2010 (EA) makes it unlawful for an employer to discriminate against a worker because of their race. Race includes:

  • Race
  • Colour
  • Nationality
  • Ethnic or national origins


Types of discrimination

Direct racial discrimination

This is where a worker is treated less favourably because of their race, when compared with another worker (known as a ?comparator?) of a different racial group, but who otherwise shares the same or similar (but not materially different) circumstances as the complaining worker.

The comparator?s circumstances do not need to be identical (in terms of the type of job, job level, job experience and seniority, etc.), but must not be wholly dissimilar. If a suitable comparator cannot be found, then a ?hypothetical comparator? can be used instead, who would be deemed to have the same employment as the complaining worker (such as their title, role, level etc). An Employment Tribunal has the power to decide the particular circumstances of a hypothetical comparator (such as their personality).


  • Your perception of their race, regardless of whether or not the perception is correct. For example, if you refuse to promote an employee because you believe him to belong to a particular race but instead promote someone whose circumstances are similar to the employee, except that you do not have the same perception about their race
  • The race of another person (also known as discrimination by association). Examples include treating an employee less favourably because they live with someone of another race or because you dismissed an employee for refusing to comply with instructions that would require them to discriminate against someone because of their race.


You cannot defend a claim of direct race discrimination by ?justifying? it (arguing that your actions were a proportionate means of achieving a legitimate aim). There is, however, an exception whereby direct discrimination is allowed in circumstances where it is required, in order to comply with another law or a genuine occupational requirement of the role. For example, a dramatic performance or other form of entertainment that requires a person from a particular racial group for authenticity.


Indirect race discrimination

This will occur where you apply a formal or informal provision, criteria or practice equally to all the workers in the workplace, which puts a group of workers who share the same race at a particular disadvantage when compared with other workers and a worker within that disadvantaged group actually suffers the particular disadvantage.


For example, if you introduce a dress code that bans all employees from wearing headgear, then that dress code may result in employees who are Sikh suffering a particular disadvantage, as they cannot wear a turban. This might be a case of indirect racial discrimination.



Harassment is unwanted conduct towards a worker by an employer or another worker, because of that worker?s actual or perceived race, or association with someone of a particular race. This applies to any conduct that violates a worker?s dignity or creates an intimidating, hostile, humiliating, degrading or offensive environment even if it was not intended as such.



Employers are liable for any acts of harassment undertaken by their employees in the course of their employment ? whether they knew about it or not ? if they fail to take reasonable steps to prevent it. ?In the course of employment? means ?done whilst at work? or ?done while ?in a workplace-related environment?. Employers can?t defend a claim of harassment by showing that they did not authorise it or on the grounds that the actions were reasonable or warranted.



Victimisation happens when a worker is treated less favourably because:

  • They have asserted their right not to be discriminated against on the basis of their race by making a complaint about race discrimination
  • They gave evidence or information in a complaint of race discrimination
  • They take any other action under the EA relating to race discrimination
  • They have alleged that you or another worker has contravened race discrimination legislation


Positive action

Positive action in training and applying for particular positions


  • suffer a disadvantage connected to their protected characteristic,




Positive action is not the same as ?positive discrimination?, which is where members of a particular group who have a protected characteristic are treated more favourably regardless of their circumstances.

Positive action in recruitment and for promotions


  • There are two equally qualified candidates to choose between


Positive discrimination


Tribunal claims

If you dismiss an employee, or if an employee resigns because they claim that they have been discriminated against by you, then they may make a complaint of unfair dismissal to an Employment Tribunal. In addition, they may also claim for damages on the grounds of discrimination, which they will be able to do regardless of their length of service.


Further information

For more detailed information please look at the official Advisory Conciliation and Arbitration Service (Acas) site. Acas offers free, confidential and impartial advice on all employment rights issues.


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