A comprehensive look at the true cost of entrenched race discrimination, the EHRC puts a clear spotlight on a divided nation. If this report does not “start a conversation” about race, then the impact on Britain’s reputation within a global market will be hugely detrimental.
For years, equality campaigners and lawyers have been asking for a conversation with whoever will listen to look at the underlying problems and the overt differences within communities.
Successive governments have been lobbied and asked to review equality laws, remedies and enforcements.
The judiciary has been asked to examine the hurdles that are faced by Black, Asian, and minority ethnic (BAME) people within the workplace and we have brought claims for individuals and groups against employers under the Equality Act. Yet progress is slow, piecemeal and without a real strategy.
Over recent years, my frustration with the law’s inability to address systemic discrimination has grown.
The US has a deeper understanding of what systemic discrimination is. In Britain, we are still asking if Britain has a racial bias. After all, we have sorted racism haven’t we?
The EHRC’s report, and everyday experiences of BAME workers, shows that we really haven’t. However, we need to change the language around race discrimination in order to differentiate between “racist” and “race discrimination”.
Claims of workplace race discrimination are generally not unmeritorious in my experience; it is simply that the hurdle remains too high.
Alongside this, we remain in denial that we live in a society with racial preference. This is now less of a surprise following the surge in reported race hate crime post-Brexit. But the metropolitan cities must not be complacent, as race discrimination pervades all systems – education, health, justice and employment.
Within the employment context, the EHRC found the following (amongst others):
- White people have higher employment rates (74.7%) than BAME people (59.3%);
- BAME workers are moving into more insecure forms of employment , with twice as more BAME workers within agency work (4.3% v 2.1%);
- Pakistani/Bangladeshi women are less than half as likely to be employed compared with average employment rates for other women;
- Black graduates earn 23.1% less on average than White graduates;
- Much lower proportions of BAME workers are in senior positions.
In fact, it is evident that race discrimination and socio-economic factors go hand in hand.
Yet, the Equality Act 2010 is still not fully in force to tackle structural discrimination based on socio-economic factors (although Scotland has in fact committed to bringing section 1 of the Equality Act into force which will see a public sector duty imposed to have due regard to reducing socio-economic inequality when making strategic decisions).
Further, section 14 of the Equality Act, to tackle combined discrimination has never been activated. This means that it remains impossible to bring a claim if the discrimination is based on more than one protected characteristic, such as being a Pakistani woman. Instead, there is still a requirement to bring a claim for race and sex discrimination in that circumstance.
It is also frustrating that section 19 of the Equality Act, which prohibits indirect discrimination (which is the crux of systemic and entrenched discrimination) has failed to address adequately the problem of structural race discrimination.
Within the employment context, there have only ever been a small handful of successful indirect race discrimination cases. And in recent years, we have seen the Court of Appeal make it even harder for those claims to succeed.
Until recently, the Tribunals and Courts have generally agreed that a claimant is not required to show why a policy, criterion or practice has caused her disadvantage, only whether it has done so.
Since the Court of Appeal’s decisions in 2015 in the cases of Essop and Naeem, an individual claiming indirect race discrimination now needs to establish that the reason why a particular policy (for example) has a discriminatory impact on a BAME group is because of race/religion and that this is also the reason why they have suffered a disadvantage compared with a non-BAME group.
The reason why a wider policy or practice may have more detrimental impact on a BAME group is often historic and may even be unknown. By creating this additional legal hurdle, it makes indirect race discrimination an even more elusive.
The report also highlights that there is a race pay gap. Government should now introduce mandatory race pay gap reporting alongside the mandatory reporting to be completed in relation to the gender pay gap (which it is understood will come into force as of April 2017, with the first reporting to take place in April 2018).
There is no good reason why pay gap reporting should not also cover BAME employees.
So are Britain’s employers racist? I wouldn’t use the word racist, but we have failed to tackle the serious problem with race discrimination which pervades employment.
EHRC’s report ‘Healing a divided Britain: the need for a comprehensive race equality strategy’ states that “Pakistani/Bangladeshi women are less than half as likely to be employed compared with average employment rates for other women …Black graduates earn 23.1% less on average than White graduates”.
These are just two examples amongst others that demonstrate that BME workers are being subjected to race discrimination on a daily basis. Urgent action must be taken about the unfair employment practices that impact BME workers.
Leigh Day calls for the government to introduce mandatory race pay gap reporting alongside gender pay gap reporting as a priority.