LABOUR LAW

Labour Law

Labour Law

Race discrimination can arise in one of four ways: (Smedley 2005:16-26)

Direct discrimination

Indirect discrimination

Harassment

Victimisation

It applies: (Smedley 2005:16-26)

To arrangements for deciding who should be offered employment

To the terms on which employment is offered

To situations in which an employer refuses or deliberately does not offer someone a job

To the way in which access to opportunities for promotion, transfer or training, or any other benefit, facilities or services is provided

To dismissal or where someone has been subjected to any other disadvantage

In the scenario of race discrimination against Cornelius, who works as a paralegal for Penn and Penn Solicitors. Cornelius is a Jamaican born but had been racial discriminated at work by Frank.

Cornelius had been suffering this and tried to ignore the situation, as he is advised by one of his partner. Cornelius has been suffering from indirect racial discrimination. Indirect discrimination occurs when the employer operates a “provision, criterion or practice” which, on the face of it, seems neutral in relation to race, but in practice, works to the disadvantage of one (or more) racial group. To prove a case of indirect discrimination, the claimant has to show that the practice had a detrimental effect on them, or put them at a particular disadvantage, in comparison to people of other races. As with direct discrimination, employers do not have to have intended to discriminate, to be caught by the legislation. But, unlike direct discrimination, they can justify it if they can show that the provision, criterion or practice they applied is, when looked at objectively, proportionate to the aim they were trying to achieve. This involves balancing the interests of the employer against those of the worker. (Twine 2007:12-20)

Proving race discrimination is not straightforward. The onus is on the person making the claim to prove, on the balance of probabilities, that their employer discriminated against them to establish that discrimination has occurred.

This means that the Tribunal does not have to be certain, but it has to think it more likely than not that the treatment was on the grounds of the person's race.

Once the claimant has established facts from which a Tribunal could conclude that there has been discrimination then the burden shifts to the employer to prove otherwise. Where, for example, if Cornelius complains Frank passed comments to him on racial grounds, the evidence may point to the possibility of racial discrimination. If Cornelius has no explanation, or if the Tribunal finds his explanation inadequate or unsatisfactory, it can infer that the discrimination was on racial grounds. (Trepagnier 2006:14-58)

Because of the difficulties in proving a claim of race discrimination, under the Race Relations Act, Cornelius can serve a Questionnaire on their employer to obtain information or documents in order to ascertain the strength of their claim and to establish as far as possible, what the facts are and the reasons for their treatment.

If employer fails to reply within the eight week time limit without providing a reason, or ...