Employment: who is protected? 

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• Employees and other workers
  
• Employment agencies
  
• Vocational training and other education
  
• Associations and partnerships
  

Employees and other workers

What kind of discriminatory acts is a job applicants protected against?

Under Section 4(1), job applicants are protected against discrimination in the:

• arrangements for determining who should be offered employment, such as offering an interview, drawing up a shortlist, the arrangements for interview or questions at interview;
• terms on which employment is offered, such as the rate of pay or the shifts or hours to be worked; and
• refusal or deliberately omitting to offer employment.

What kind of discriminatory acts is an employee protected against?

Under Section 4(2) employees are protected against discrimination in:

• the terms of employment, including pay, hours of work, and any other contractual terms;
• the way in which promotion, training, a transfer or any other benefits, facilities or services or provided or omitted to be provided;
• dismissing the employee or subjecting them to 'any other detriment'. This includes any treatment which puts an employee at a disadvantage, and includes harassment and bullying.

Does a worker who feels he or she has been the victim of racial discrimination by his or her employer have to be an employee to be entitled to raise an action in an employment tribunal?

No, although the Race Relations Act uses the term employee, under section 78(1) there is a broad definition of employment which includes a worker who is not employed under a contract of employment. An employer must not discriminate on racial grounds against:

• anyone employed under a contract of employment;
• anyone employed under a contract of apprenticeship;
• anyone employed under a contract to perform work personally.

This includes:

• employees
• apprentices
• self-employed workers and 'independent contractors', so long as they are employed to do the work themselves.

A trainee, that is, a worker employed under training contracts, may not come under the extended definition of employment either as employees or as other workers. However, such trainees do have protection under the provisions dealing with vocational training (see below).

There have been conflicting decisions in employment tribunals as to whether volunteers are in employment and so protected against discrimination by the Act. Generally volunteers will not be in employment unless there is some form of contract of service between the employer and the volunteer where both parties are under a legal obligation to perform certain tasks. The few successful claims by volunteers have been in cases where there is a formal contract between employer and volunteer and generous provision for expenses. Each case will be dependent on the particular relationship between the parties.

Are there any minimum service requirements?

No. The Act applies to any worker regardless of the number of hours worked.

This includes:

• part-time workers;
• casual workers;
• temporary workers; and
• workers on fixed-term contracts.

The Act also applies from the moment a worker is employed. There is no requirement for a minimum number of days' or weeks' service.

Does the Act only apply to persons in employment in Great Britain?

Generally the Act will only apply where the employment or prospective employment is at an establishment in Great Britain and the employee does his work wholly or partly in Great Britain.

However, under section 8(1A) of the Act, the Act will also apply in cases of discrimination on grounds of race or ethnic or national origin or harassment where the employee does their work wholly outside Great Britain and the employer:

the employer has a place of business at an establishment in Great Britain;

the work is for the purpose of the business carried on at that establishment; and

the employee is ordinarily resident in great Britain either at the time when he applies for or is offered the employment or at anytime during the course of the employment.

Does the Act apply to people who are employed, not by the person or organisation which is discriminating, but by someone else to do work for the discriminator?

Yes, Section 7 of the Act also gives protection to 'contract workers'.

These are defined as workers who are employed by one person but who do work for a third party under a contract between that person and the third party. The third party for whom the work is done is called, in this context, a 'principal'.

This is not restricted to workers supplied to work under the direct control of the principal. It also includes workers who do work which benefits the "principal" so long as there is a contractual obligation on the part of someone else to supply the worker to work for the principal.

Contract workers include:

• workers supplied to an employer ("the principal") by an employment agency, such as a secretary supplied to cover for absence
• workers employed by a licensee which acts under licence to sell goods belonging to the licensor ("the principal"), such as an assistant employed by a concessionaire in a department store
• workers employed by a landlord to carry out work which the landlord is required to do under its contract with a tenant ("the principal"), such as a cleaner employed by the landlord to clean the premises of the tenant.
• 8. What kind of discriminatory acts by the principal is a contract worker protected against?

Section 7(2) of the Act protects contract workers against discriminatory treatment by the principal in relation to hiring, termination and conditions of work.

This includes:

• the terms on which the contract worker is allowed to do the work;
• not allowing the contract worker to do or continue the work;
• in the way the principal affords the contract worker access to any benefits, facilities or services, or refusing or omitting to afford them access to them; or
• by subjecting the contract worker to any other detriment.

Under section 7(3A) it is also unlawful for the principal to subject a contract worker to harassment.

Employment agencies

Does the Act provide protection against discrimination by employment agencies?

Yes, under Section 14 of the Act. The Act makes it unlawful for an employment agency to discriminate in the way it carries out its services. Anyone who feels that such an agency has discriminated against them may raise an action in an employment tribunal.

What sorts of employment agencies are covered?

Under section 78(1) of the Act, the Act applies to any person or body which provides the service either of finding employment for workers, or of supplying employers with workers, whether or not this is carried out for profit.

This includes:

• private recruitment agencies;
• job centres; or
• careers offices, including a schools careers department which sends pupils for jobs

What kind of discriminatory acts by an employment agency does the Act prohibit?

Section 14(1) of the Act states that it is unlawful for an employment agency to discriminate:

• in the terms on which it offers to provide any of its services;
• by refusing or deliberately omitting to provide any of its services, such as failing to arrange an interview for a job vacancy; or
• in the way in which it provides any of its services.

It is also unlawful to subject to harassment a person who uses the services or requests the use of the services.

Under section 14(5) of the Act, if an employment agency relies on a statement made by an employer that its action, such as not sending someone for interview, would not be unlawful, the agency will not be liable for discrimination, but only if it was reasonable to rely on the employer’s statement.

In certain cases, both the employer and the agency may have unlawfully discriminated against a job-seeker, such as if the agency knowingly or unreasonably complied with a discriminatory request by the employer, such as not to send along for interview someone of a particular ethnic origin.

Vocational training and other education

Is there protection against discrimination by bodies which carry out vocational training?

Yes, this is covered under Section 13 of the Act. It is unlawful for bodies which provide vocational training to discriminate against someone who is looking for or undergoing such training.

Anyone who feels that a training body has discriminated against them may raise an action in an employment tribunal. This includes:

• those who provide vocational training, such as an employer with whom a trainee is placed;
• those who make arrangement for the provision of vocational training; or
• those who facilitate vocational training.

This part of the Act does not apply to schools, colleges and universities. Under Section 13(2), although these institutions may provide vocational training, discrimination by these bodies is covered by the education provisions of the Act, not the employment provisions. Anyone who feels that one of these bodies has discriminated against them can raise an action in the county or sheriff court, not an employment tribunal.

What kind of discriminatory acts by a vocational training body does the Act prohibit?

Under section 13(1), it is unlawful for a vocational training body to discriminate:

• in the terms on which access to training courses or other facilities is given
• by refusing or deliberately omitting to provide access to such training courses or facilities;
• by terminating the training; or
• by subjecting a trainee to a detriment during the course of the training.

Under section 7(3) it is also unlawful to subject a person to harassment in circumstances where the person is being provided training or is seeking to undergo such training.

Does this part of the Act apply to schools, colleges or universities?

No. This is explained under Section 12(3). Although schools, colleges and universities may provide such authorisation or qualification, discrimination by these bodies is covered by the education provisions of the Act, not the employment provisions. Anyone who feels that one of these bodies has discriminated against them can raise an action in the sheriff court, not an employment tribunal.

Does it apply to all qualifying bodies?

No. If there is a statutory right to an appeal against a decision by a qualifying body anyone who feels that they have been discriminated against must use this right to appeal, and may not present a complaint to an employment tribunal. This is described in Section 54 (2) of the Act.

What kind of discriminatory acts by qualifying bodies does the Act prohibit?

Section 12(1) states that it is unlawful for a qualifying body to discriminate:

• in the terms on which it is prepared to confer or renew the authorisation or qualification;
• by refusing or deliberately omitting to grant an application for authorisation or qualification;
• by withdrawing an authorisation or qualification; or
• by varying the terms of an authorisation or qualification.

Associations and partnerships

 Are partners protected against discrimination by the firm of partners of which they are members?

Yes. Firms are liable for acts of discrimination against partners under section 10 of the Act. The employees of the firm will also be protected by the general provisions relating to discrimination in employment.

Under section 10(1A) where the discrimination is on grounds of race or ethnic or national origins a firm will be liable no matter how small it is in terms of the number of partners. However, where the discrimination is on grounds of colour or nationality, discrimination is only unlawful where the firm has six or more partners, as described in Section 10(1).

It is unlawful for a firm to discriminate both in relation to appointments as a partner and in relation to the treatment of existing partners. It also applies to people proposing to form a partnership as well as existing partnerships.

Section 10 applies in relation to:

• arrangements made by the firm to determine who should be offered a partnership;
• the terms on which a partnership is offered, such as by requiring a particular financial investment;
• refusing or deliberately omitting to offer a partnership; or
• cases where the person already holds the position, the way the firm provides access to benefits, facilities or services, deliberately omitting to afford access, expulsion from the partnership, or subjecting a partner to any other detriment. 
• It is also unlawful for a firm to subject to harassment a partner or person who has applied to become a partner.

Are members of organisations which represent workers or employers protected against discrimination by those organisations?

Yes, under Section 11of the Act. Such organisations are also liable for acts of discrimination against their own employees under the general provision covering employers.

Both prospective members and members are protected under the Act. Organisations subject to this provision include:

• trade unions;
• employers’ organisations;
• professional associations (for members carrying on a particular profession), such as the Law Society whose membership comprises solicitors; and
• trade associations (for members carrying on a particular trade), such as an association of taxi drivers.

It is also unlawful to subject to harassment a person who is a member or is applying for membership.

What kind of discriminatory acts by these organisations against their members does the Act prohibit?

Section 11(3) of the Act prohibits discrimination both in relation to admission to membership and also in relation to treatment of existing members.

In relation to person applying for membership, it is unlawful to discriminate:

• in the terms on which the organisation is prepared to admit a person to membership; or
• by refusing or deliberately omitting to accept an application for membership.
• In relation to a person who is already a member, it is unlawful to discriminate:
• in the way the organisation affords the person access to benefits, facilities or services or by refusing or deliberately omitting to afford the person access to them;
• by depriving the person of membership or varying the terms on which they are a member; or
• subjecting them to any other form of detriment.

Is there protection against discrimination by bodies that authorise entry into a particular trade or profession?

Yes. This is covered under Section 12 of the Act. It applies to bodies whose authorisation is necessary for entry into a trade or profession, and also those bodies whose authorisation is not necessary, but which facilitate entry into a trade or profession. The Act applies to any body which can confer such authorisation or qualification ('qualifying bodies').

Authorisation or qualification includes recognition, registration, enrolment, approval and certification

It is also unlawful to subject to harassment a person who holds or applies for such authorisation or qualification.