Strengthening the Race Relations Act 1976

The Commission for Racial Equality has submitted timely proposals to strengthen the UK's racial equality laws. The Home Office have consulted on the CRE document and legislative proposals are awaited. Race equality comes under the Home Office remit although most of the CRE proposals relate to the field of employment.

The Race Relations Act 1976 is in urgent need of updating. Black participation in the labour market remains disproportionately low. For example unemployment among all black workers in spring 1997 was 15%, against a white average of 6.6%. Black workers are far more likely to be low paid and suffer from job segregation. For example the bottom 10% of black workers earn on average 50p per hour less than the bottom 10% of white workers - representing a differential of nearly 20%. The further pressing concern is the effect of multiple forms of discrimination, most especially experienced by black women in the labour market. For example during the period 1985-1997 the black female rate in the labour market remained static at around 54% throughout the period whereas female activity started from a significantly higher rate and increased from 69%-72% during the same period. Stronger legislation is required to eliminate these discrepancies.

The fairness at work proposals are strangely silent on the issue of racial discrimination in employment, yet eliminating racial discrimination is an integral part of fairness in the workplace. The oversight makes the CRE's proposals all the more timely. The proposals are surprisingly modest and largely uncontroversial given the public consensus supporting the goal of racial equality and the statistics which show that this is yet to be achieved.

The CRE recommend strengthening the Act, extending the areas for protection and limiting the exception. It acknowledges the difficulty in proving cases and makes recommendations for better enforcement and preventative measures through record keeping.

A summary of the main points follows.

The CRE seeks to mainstream racial equality by making it a permanent priority and obligation for both government and public bodies. This would include a statutory obligation to consider the race relations implications in all new legislation that of both primary and secondary. The Race Relations Act 1976 should apply to all aspects of government and public bodies and the creation of new racial equality duties to work for the elimination of race discrimination and to promote the equality of opportunity in gradations between people in different racial groups. This would include a statutory obligation to provide impact statements, ethnic monitoring, annual reporting and performance monitoring. Racial equality performance should be included as a key factor to be assessed with the purposes of best value procurement regime to replace compulsory competitive tendering.

In keeping with the Human Rights Act, the Commission proposes creating a positive right not to be discriminated against on racial grounds.

Specific amendments are proposed to the definition of indirect discrimination. It would be defined to include an apparently neutral provision or practice which is applied to those of all racial groups but either cannot be as easily satisfied or complied with by those of a particular racial group or where there is a risk that the provision may operate to the disadvantage of those from a particular racial group. The discrimination will be unlawful unless the provision can be justified by objective factors unrelated to race. The new definition would widen the current definition in two significant ways - firstly to cover practices and policies as well as absolute conditions or requirements and secondly to cover situations where there is a risk of disproportionate impact, but where perhaps the narrow statistics of a particular workplace or department do not show significant disproportionate impact.

CRE also recommends extending victimisation protection to include matters arising post employment and where complaints have been made in good faith, but for technical reasons do not fall under the Race Relations Act 1976, thereby currently denying individuals who make such claims protection from having brought proceedings. 
The CRE have proposed new areas for inclusion in the act including all stages of procurement in the tendering award of contracts, protection for volunteers, office holders and former employees all of whom are currently excluded from the act.

The CRE proposes limiting the exceptions to the act. Employment for the purposes of a private household should be more narrowly defined so that, for example, a chauffeur, and trades people are not caught by the exception. The categories of genuine occupational qualification should be reduced to cases where the racial group of the job holder is an essential defining feature, or where personal services to a particular racial group can most effectively be provided by a person of that racial group. The proposals also include extending protection to the partnerships of five or less partners and to employment at an establishment anywhere in the EC.

The CRE stops short of calling for positive action in employment, other than to training facilities where under-representation is national or local and the proposals extend to training bursaries as well as training facilities and on the job training. Compulsory ethnic monitoring is proposed for work forces in excess of 250 employers. Many a case is lost on lack of statistics. Ethnic monitoring would be a tremendous advantage in both establishing where under representation occurs and in providing evidence in particular cases. However 250 employees is a curious threshold. It is inconsistent with other legislation (eg Disability Discrimination Act 1995 where the threshold is now 15, collective redundancy consultation provisions where the threshold is 20 employees) and we suggest a much lower threshold than 250 be applied. Record keeping by employers will become increasingly important and is not an unfamiliar concept both for tax, national insurance purposes but also under the Working Time Regulations and National Minimum Wage act.

The CRE is also seeking to extend its own powers to conduct formal investigations and specify remedial action and time scales in non-discrimination notices as well as extending its powers to issue codes of practice in new areas and enter into legally enforceable undertakings. The CRE should be revising its code of practice on discrimination and does not need new powers to do this.

It is recommended that the EC burden of proof directive applicable in sex discrimination cases should be used to amend the burden of proof in race discrimination cases too. Proposals are made to extend time limits for bringing claims to six months, group litigation and wider remedies be available to Employment Tribunals together with the power to award compensation in unintentional indirect race discrimination cases.

As well as the CRE's proposals, the outlawing of religious discrimination, such as exists already in Northern Ireland, should be urgently considered. Trade unions should be able to reserve places for black candidates on elected bodies that to mirror section 49 of the Sex Discrimination Act 1985.

The CRE have previously made similar recommendations in 1985 and 1982. Let's hope there is an element of third time lucky.