Ask the Expert - Can I make a claim against my employer for race discrimination if I think I have been treated badly by them?

Race is one of the 9 protected characteristics under the Equality Act 2010. Direct discrimination occurs when someone is treated less favourably by another because of one of the protected characteristics, in this case race).

In a race discrimination claim it is for the employee to first establish that the treatment complained of was because of race.  The employee must present evidence to the Employment Tribunal that would enable it to conclude that the treatment complained of was race related unless provided with evidence to the contrary. There needs to be causation - a link between the less favourable treatment and the employee’s race. If the employee cannot show this, there will obviously be no case for the employer to answer.

Once and only once the Employment Tribunal is satisfied that there is a case to answer, the onus is then on the employer who must provide an alternative (credible) explanation for the alleged treatment and to show that it was not race related.

Recently in the case of London Ambulance Service v Sodola the EAT reaffirmed the above.  Mr Sodola, a black African man, complained that his failure to secure a promotion was because of his race and that his race was also a factor in the employer’s delay in providing him with feedback on his failed promotion application.

The Employment Tribunal found that the failure to promote Mr Sodola was not because of his race but the delay in providing the feedback was, as the employer did not provide satisfactory reasons for the delay.  It was accepted that there was a delay in providing the feedback and that once provided it was insufficient.  Further, the employer had not followed its own policies in the way it handled records relating to the application.  All these factors were attributed to Mr Sodola’s race. 

However, on appeal the EAT overturned the finding of race discrimination. It held that in the absence of more convincing evidence from the employee, the delay in providing the feedback etc. could not lead to an inference of race discrimination. Accordingly, the burden of proof should not have shifted to the employer and the Employment Tribunal was wrong to have it justify its actions; the employee not having satisfactorily shown discrimination.  The EAT said that poor treatment on its own, did not equate to discriminatory treatment.

The case whilst not changing the law in any way, emphasises that the burden falls on the employee to show discrimination and only then will the employer have to produce evidence to refute it.

How our employment team can help you

Our Employment team advises both employers and employees on discrimination and workplace policy issues, including:

• reviewing and drafting company policies on inclusion and equality

• advising employers on balancing protected characteristics and risk

• supporting managers and HR teams in handling sensitive employee concerns and complaints; and

• advising employees considering discrimination and harassment claims.

If you would like to discuss how this decision may affect your organisation, or any other employment law issue, please contact us on 020 8290 0440 or speak to a member of our Employment team.