Race Relations Acts Analysis - Essay Example

RACE RELATIONS ACT 1976 AND THE ACTIONS THAT ATHEA AND THE COMMISSION FOR RACIAL EQUALITY COULD TAKE IN RESPECT OF THEM Introduction: David Feldman defines civil liberties as being comprised of those freedoms which people enjoy by virtue of being the citizens of a particular State rather than as members of human society. In this context, he defines the significance of civil liberty as a defining element of the “relationship between the State and its citizens, such as freedom from discriminatory or arbitrary treatment.”*1 (Feldman 4). The various freedoms guaranteed to an individual by a State would include the freedom to enter into employment without prejudice being exercised against him/her by way of the race or gender he/she belongs to. Feldman emphasizes the importance of civil liberties since it represents a balance between “potentially conflicting interests, some individual, some social*2. The Race relations Act of 1976: In the U.K. the Government has recognized the importance of preserving equality and civil liberties in the interest of overall progress in the State. The Race Relations Act framed in 1976 specifically deals with discrimination on the grounds of race in the fields of employment, training education, housing and other services deemed necessary to ensure that the civil liberties of an individual are not hampered*3. This act was further amended in 2000 to incorporate discrimination from all public bodies. Chapter 74, Section 1 of the Race relations Act sets out the grounds that will constitute a violation of the provisions of the Act by any person when “on racial grounds, he treats that other less favorably than he treats or would treat other persons” especially when “he cannot show [it] to be justifiable, irrespective of the color, race, nationality or ethnic or national origins of the person to whom it is applied.” Part II of the Act deals specifically with discrimination exercised by employers and under Section 4, an employer’s action would also be deemed to be unlawful under the provisions of this act if he discriminates against an employee or potential employee by “refusing or deliberately omitting to offer him that employment.” The Race Relation Act defines four types of discrimination: direct discrimination, indirect discrimination, victimisation and harassment. Direct discrimination is said to occur when a person treats another person less favorably on racial grounds. Some examples of direct discrimination include refusing entry to members due to their race or exercising quotas to prevent members of certain races from exceeding a particular proportion. Direct discrimination would also include the instance where an employee is denied promotion because customers would not like to be served by members of that race. Applying the Race relations Act in Althea’s case, it may be noted that she has a good cause of action on the following grounds (a) being treated less favorably (b) the less favorable treatment arising out of her race and (c) being denied employment because members of the club may object to her presence. Although the employer has couched his opposition on grounds that he feared that she would be upset by the remarks, nevertheless he is guilty of violation of the Race Relations Act because as an employer, he is obliged to consider her application for employment on par with other members of other races. What is also significant to note is that the very same day, the club policy has also been changed to include only members belonging to a particular race, which is in direct contravention of the Race relations Act, constituting indirect discrimination. The concept of indirect discrimination under the Race Relations Act occurs when a particular racial group is unjustifiably placed at a disadvantage due to the inability to adhere to adhere to and comply with a particular provision, condition or criterion. The requirement for a 30 year membership cannot be construed as indirect discrimination under the Race Relations Act neither can the requirement that the proposal for membership be via nomination and seconding of that nomination. However the provision that applicants must of necessity, belong to the “Protestant Christian religion” implies that all members who do not satisfy this particular criterion are excluded from membership, which would qualify as a violation of the race Relations Act, since it is discrimination on the basis of race and religion. There is only one limitation that Althea may potentially face in putting forward an application for discrimination under the Race Relations Act. This is the requirement that proof be provided, of being treated less favorably by pointing to someone else, compared to whom she has been treated less favorably – known as a comparator. It would be helpful to Althea’s case if she could provide an example, such as the person who may have been hired in her place, as the comparator. Such a referent other would help to establish her case more conclusively. However, it is also possible that the court considering her case may construct a hypothetical comparator for her. There are some exclusions to the exercise of the provisions for discrimination under the Race relations Act, which will arise if for some genuine reason, only a person belonging to a particular racial group would be suitable for a particular job, or if the person belonging to the less favorably treated group is being treated less favorably due to lack of qualifications, abilities or skill. In Althea’s case, the Court will examine alternative reasons why Althea may have been refused the job and will examine whether these exclusions apply in her case. Hence if Althea has a hitherto good history of employment and performance at previous jobs and the cause of the loss of her job demonstrated to be that of racial discrimination, then she has a good chance of winning her suit. However, if the Club and/or the manager can provide adequate proof that the refusal to provide the job was due to some other compelling reason other than race, this will hinder Althea’s suit. The Human Rights Act of 1998: Since UK is now a part of the European Commonwealth, there are certain provisions of European community law which also have to be applied within the member States. Article 8 of the Convention mandates the right to privacy and individual freedoms while 14 Article 14 of the European Convention on Human Rights mandates that “the enjoyment of the rights and freedoms” in the Convention be secured “without discrimination.”*4 The Human Rights Act of 1998 was passed I England pursuant to the European Convention on Human Rights and discriminatory treatment that violates individual freedoms. Under Article 3 of the Human Rights Act of 1998, English Courts are obliged to read and give effect to existing Parliament legislation in such a manner that it will be compatible with convention rights “as far as it is possible to do so.”*5 Thus, while existing legislation under the Race relations Act already makes it illegal to discriminate against a person on account of his/her race, further legislation is being considered to also include provisions against discrimination due to religion or sexual orientation. Draft regulations were introduced in 2003 and are expected to go into force by 2006.*6 Courts considering cases on racial discrimination or other violations of fundamental rights and civil liberties will be obliged to also read and give effect to Parliament legislation in a manner that will make it compatible with Convention rights, which means that the standards set out by Article 8 read with Article 14 must also be satisfied. Article 14 does not exist on its own, rather it must be read in conjunction with the other Articles of the Convention in order to ensure that the goal of civil liberties and preservation of fundamental rights is maintained. According to the provisions of Article 14, there is no stated requirement that the alleged discrimination should have caused harm to the victim and the complainant is not obliged to prove harm, as is the case with claims under tort. However, it must be noted that the Human Rights legislation can only be enforced directly against public bodies, or private bodies who exercise public functions. In enforcing the provisions of Article 14 of the European Convention, a Court can only interpret the provision to the extent that it falls within the sphere of the judicial function of interpretation. When any change in Parliament framed laws are concerned, the Courts will not be in a position to take judicial action*7. Under the enhanced provisions of the Race relations Act, the Club Committee members may also be liable on grounds of discrimination against Althea. Section 20 (a) of the Race relations Act clearly states that as far as the provision of services to the public is concerned, a refusal or deliberate omission in the provision of such services will be deemed to be a violation of the Act. An examination of the conditions laid out by the members of the Club shows that there appears to be sufficient justification to support the contention that the intent behind the new resolution passed by the Committee in membership requirements was to exclude members of undesirable communities from membership, since they could potentially nominate other members from those race sin the future. Unless and until the Committee can provide compelling reasons to justify the reason for conditions based upon factors other than race and religion, they will be deemed to be guilty of indirect discrimination of members of Asian, African and Irish communities and direct discrimination of Althea, since the Manager’s refusal to employ Althea would have been dictated by the wishes of the Club Committee. Actions that Althea could take: There are two potential course of action that available to Althea, to judicially register her case claiming discrimination with the Courts or the executive body: (a)        File a complaint with the Employment Tribunal (b)        Contact the Commission for Racial Equality Filing a complaint with the Employment Tribunal: From October 2004, unless there are special circumstances (e.g. threats or continuing harassment by the employer), the employee must write to the employer raising a grievance and attend one or two meetings before bringing a discrimination claim to an employment tribunal. This is even where the complaint relates to disciplinary action short of dismissal or another grievance. The difficulties of proof have been recognized in the Race Relations Act and provision is made in the Act for a questionnaire to be used by the applicant. A form may be served on the employer asking certain standard questions. The replies are admissible in evidence and a refusal to reply without reasonable excuse, or evasive replies, permit the tribunal to draw adverse conclusions. An equivocal reply might also lead a tribunal to infer that there has been racial discrimination. A questionnaire will not count as raising a formal grievance. In the case of King v Great Britain China Centre*8 the Court considered the kinds of evidence that an employment tribunal could consider while evaluation a claim of race discrimination. Neill J stated in this case that “the outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.” When a claimant is able to satisfactorily show that he/she has been treated less favorably in comparison to other applicants, the tribunal – in the interest of justice and equity – will then look to the defendant discriminator for an explanation. If no satisfactory explanation can be provided or if the alleged discriminator is vague and evasive in its answers, the Courts may draw an inference of guilt. This case is significant in that the burden of evidential proof has been deemed to be unnecessary in such cases of alleged discrimination, rather it will be by inference that the Court will reach its decisions. This decision has therefore helped to give shape and body to the provisions laid out under section 65(2)(b) of the Race Relations Act. The outcome of Althea’s case will therefore depend upon a large extent upon whether or not the Committee is able to provide a satisfactory alternative explanation for its policy, a reason that is justifiable and reasonable and leads to the inference that it is not solely conditioned by race. In the case of Sidhu v Aerospace Composite technology Ltd*9 (2000) EWCA Civ 183 for example, a Sikh claimant alleged racial abuse during an outing. The Court in its examination of the case, looked into whether to not a person of a different race would have been treated differently under the same circumstances and whether the Company policy was discriminatory. However the inference that the Court was able to draw in this case based upon the circumstances, was that the Company policy was not race specific and was therefore not directly discriminatory. Therefore in Althea’s case, a great deal will depend upon the inferences that the Court is able to draw in her case, as they examine the committee policy to deduce whether it would have resulted in another person of a different race being treated more favorably. Other factors influencing disposition of claims: The Race Relations Act imposes strict time limits throughout the procedure for bringing a case for race discrimination. Good cases can be lost before they start through hesitation or delay. If someone suspects they have been or are being racially discriminated against they must take advice immediately, contact their union as soon as possible and raise a grievance under the new statutory procedure. The time limit for making a claim for racial discrimination to the employment tribunal is three months from the act of discrimination. This time limit is extended by three months to allow the statutory grievance procedure to take place. A discriminatory act may extend over a period of time so that it may be a continuing act if it takes the form of some policy, rule or practice in accordance with which decisions are taken by the employer. In these circumstances the three month period runs from the end of the continuing act. Contacting the Commission for Racial Equality: The Commission for Racial Equality was set up under the 1976 Race Relations Act. It receives an annual grant from the Home Office, but works independently of Government. The CRE is run by commissioners appointed by the Home Secretary, and has support from all the main political parties. The CRE has the following three main duties: (a) To work towards the elimination of racial discrimination and to promote equality of opportunity. (b) To encourage good relations between people from different racial backgrounds. (c) Its third responsibility is to monitor the way the Race Relations Act is working and recommend ways in which it can be improved. The commission can provide legal advice and assistance to people who think they have been discriminated against. It can also investigate companies or organizations where there is evidence of discrimination and can take legal action against them. The powers of the CRE cover England, Scotland and Wales. The Commission has the power to conduct formal investigations at the end of which if consider necessary the Commission shall make recommendations and a report of the findings in any formal investigation conducted by them: Section 48 power to conduct formal investigations: (1)      Without prejudice to their general power to do anything requisite for the performance of their duties under section 43(1) the Commission may if they think fit, and shall if required by the Secretary of State, conduct a formal investigation for any purpose connected with the carrying out of those duties. Recommendations and reports on formal investigations: (1) If in the light of any of their findings in a formal investigation it appears to the Commission necessary or expedient, whether during the course of the investigation or after its conclusion:    (a) to make to any person, with a view to promoting equality of opportunity between persons of different racial groups who are affected by any of his activities, recommendations for changes in his policies or procedures, or as to any other matters; or (b) to make to the Secretary of State any recommendations, whether for changes in the law or otherwise, the Commission shall make those recommendations accordingly. (2) The Commission shall prepare a report of their findings in any formal investigation conducted by them.  (3) If the formal investigation is one required by the Secretary of State— (a) the Commission shall deliver the report to the Secretary of State; and (b) the Secretary of State shall cause the report to be published,  and, unless required by the Secretary of State, the Commission shall not publish the report. (4)      If the formal investigation is not one required by the Secretary of State, the Commission shall either publish the report, or make it available for inspection in accordance with subsection (5). Limitations to be considered: Apart from timely filing of her suit and the need for a comparator, there are some other factors that Althea must consider in bringing a suit for discrimination against the Club manager and the Committee. The question of preferences: The question of how the invitation for the job was couched will be an important factor impacting upon Althea’s case. The cases of Perera v Civil Service Commission*10 and Meer v Tower Hamlets London Borough Council,*11 the Courts established that when an employer sets out certain preferences for a particular post in the invitation to apply for it, this cannot constitute a claim of indirect discrimination through the exclusion of candidates not satisfying those criteria. In the case of Perera, it was held that mere preferences did not amount to requirements or conditions within the meaning of Section 1(1)(b) of the race relations Act. In the case of Meer, Balcombe LJ acknowledged that such an interpretation “may not be consistent with the object of the Act”*12, but the Court rejected this appeal on the grounds that it would open the way to Section 1(1) (b) having an “extraordinary wide and capricious effect.”*13 While the Club can claim that mere preference for a particular kind of employee or member for the Club does not constitute indirect discrimination, the need for compatibility with Convention rights means that European legislation will supersede State legislation. In the case of Enderby v Frenchay Health Authority*14 Advocate General Lenz articulated the finding of indirect discrimination as follows: “….attention should be directed less to the existence of a requirement or hurdle by which women suffer a disadvantage, and more to the discriminatory result."*15 In the subsequent English case of Bhudi v IMI Refiners*16 at the Employment Appeal tribunal, the applicant argued that the case of Enderby had removed the burden of proof upon a claimant established by the cases of Perera and Meer that a requirement or a claim had been applied under Section 1 (1) (b) of the Race relations Act. This precedent is likely to be helpful to Althea in pursuing her case before the Employment Tribunal in her claim for both direct and indirect discrimination. Conclusion: In the light of the foregoing, it may be noted that Althea has a potentially good cause of action to file a suit against the Club manager and the Committee. The Human Rights Act of 1998 has mandated interpretation of existing parliamentary legislation in accordance with Convention rights established in Articles 8 and 14. Therefore the provisions of the Race relations Act will have to be considered in the light of human rights and preservation of civil liberties. The supremacy of European common law will mandate the disposition to be made in this case. The European Convention on Human Rights clarifies that individual freedoms must be preserved and decisions of the Employment Tribunal must take European human rights legislation into account in Althea’s case. Bibliography: Article 14 of the European Convention of Human Rights and Fundamental Freedoms. [Online] Available at: http://www.pfc.org.uk/legal/echrtext.htm Bhudi v IMI Refiners [1994] ICR 307 (EAT) Enderby v Frenchay Health Authority [1991] ICR 382 (EAT) and [1994] ICR 112 (CA and ECJ) Feldman, David. Civil liberties and human rights in England and Wales. Oxford University Press, 2000 King v Great Britain China Centre (1992) ICR 120 (1991)IRLR 513 Section 3(1) of the Human Rights Act of 1998 [Online] Available at: http://www.opsi.gov.uk/acts/acts1998/80042--a.htm#3 Ghaidan v Godin Mendoza (2004) UKHL 30 Perera v Civil Service Commission (No: 2) (1983) ICR 428 Meer v Tower Hamlets London Borough Council (1988) IRLR 399 Race Relations (amended) Act of 2000. [Online] Available at: http://www.opsi.gov.uk/acts/acts2000/20000034.htm Sidhu v Aerospace Composite technology Ltd (2000) EWCA Civ 183 UK Law on equality and discrimination. [Online] Available at:http://www.yourrights.org.uk/your-rights/chapters/right-to-recieve-equal-treatment/uk-law-on-equality-and-discrimination/uk-law-on-equality-and-discrimination.shtml Read More