The law distinguishes between two different types of race discrimination in the workplace: direct discrimination, covered by Section 13 of the Equality Act 2010, and indirect discrimination is provided for in Section 19 of the same act. Different legal tests apply depending on whether a worker claims direct or indirect discrimination. This article focuses on the law on direct discrimination. We will look at the law on indirect discrimination in a future article.

This is more difficult to prove than it may sound. Although a black worker might be able to show they have been treated less favourably than a white colleague, this is not enough for a claim of direct race discrimination to succeed. They must be able to show that the difference in treatment was because of their race.

To decide if race is the reason, a tribunal will compare how the black worker was treated with how a white worker was or would have been treated in similar circumstances. The fact that the employer did not intend to treat a worker less favourably is not relevant. Also, to prove discrimination the worker does not need to show that race was the sole or even the main reason for the treatment, only that race played a significant part in the reason for the treatment.

In the above examples, a tribunal would consider the circumstances of white workers who have not been selected for redundancy, and based on that comparative information, decide whether the reason the black workers were selected for redundancy was because of their race or for some other reason, such as the nature of their jobs.

In the promotion case, a tribunal would take into account the white candidates’ qualifications, skills, experience and performance at an interview. If the two candidates are similar in all other respects but the black candidate is more qualified, the tribunal is likely to draw the inference that there could be race discrimination. This does not necessarily mean that they will find that race discrimination actually took place.

This is because the tribunal will ask the employer to provide a non-discriminatory reason for why they selected the white candidate. If the employer is not able to provide such a reason, a claim for race discrimination is likely to succeed.

Evidence to show that race is the reason for less favourable treatment will depend on the particular facts of the case (see some examples below).  The mere fact that the employer has behaved unreasonably does not necessarily mean that a tribunal will find that the treatment was discriminatory. If you believe you have been discriminated against, your MiP rep or national officer can advise you on what evidence you need and help you to build your case.