The new Race Relations Amendment Act 1976 (Amendment) Regulations came into force on 9 July 2003, implementing the European Race Discrimination Directive. The new Regulations make limited but useful changes to the Act.
The main changes are a new definition of racial harassment, a new definition of indirect discrimination and a change in the burden of proof.
The new definition of harassment provides that unlawful harassment occurs when, on the grounds of a person's race, another person "engages in unwanted conduct which has the purpose or effect of (a) violating that other's dignity; or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for that other." The Regulations provide that conduct will have the effect specified in (a) or (b) having regard to all the circumstances including in, particular, the perception as the victim of the person being harassed.
Until now, there has been no definition of unlawful harassment in the Race Relations Act. Nonetheless, case law has established that harassment is unlawful, amounting to "detriment" within the meaning of the Act. This new definition, in many ways, reflects the existing case law. So, for example, unlawful harassment can occur even if the harasser has no idea that their conduct is having the effect of violating dignity or creating an intimidating environment.
A contentious issue has always been the extent to which it is the perception of the person being harassed that defines whether the harassment was unlawful. For example, if a very sensitive person interprets the conduct of the harasser as offensive, does this mean that the conduct is automatically unlawful? The Regulations address this issue, broadly by reflecting the existing case law. In assessing whether or not behaviour is unlawful, the Regulations state that tribunals should take an objective view of what does and does not violate dignity or create an intimidating environment. In assessing this they must take into account the subjective perception of the victim as one of the most important factors. It is significant that the accompanying Explanatory Notes also add that tribunals should also take into account the motives of the harasser. It is of concern that this may represent a narrowing of the definition of harassment in comparison with the European Directive. Usually, the motive of the harasser should not be a consideration, for example where they thought the harassment "was just a joke". Now it appears that such motivation may be a factor for tribunals.
The new definition of indirect discrimination provides that indirect discrimination will apply where a person applies an apparently neutral provision, criterion or practice which puts or would put persons of a particular race at a particular disadvantage and which "cannot be a proportionate means of achieving a legitimate aim."
Broader application of the Regulations
The application of the Regulations to a "provision, criterion or practice" broadens the application of the Regulations beyond the existing "requirement or condition" in the Race Relations Act 1976. The 1976 definition meant that practices which were, in effect, preferences were not covered by the Act (so for example a "preference" for an employee for whom English was their first language). Under the new Regulations they will be. Further, the definition requiring that the practice put people at a particular disadvantage, although still requiring an Applicant to prove disadvantage, does mean that strict statistical evidence is no longer required and any way of proving disadvantage would potentially be acceptable.
However, what is different to the existing 1976 Act is the defence available to employers in indirect discrimination cases. In place of the previous test of justification (which required the practice in question to correspond to a real need on the part of the employer) we instead see a Human Rights type test of proportionality. This is likely to require a balancing of the interests of the employer and the interests of the employee.
This is very much a type of "middle way" defence, balancing competing interests. It is potentially weaker so far as employees are concerned than the previous defence which required the employer to show a real need. It remains to be seen how tribunals will interpret this provision, bearing in mind that the new Regulations cannot as a matter of law provide weaker protection to employees than previous provisions.
Another change, likely to be significant in its impact, is the that in the burden of proof. Previously, if the employee proved facts that established a potential case of less favourable treatment, then it was up to the employer to prove an innocent explanation. If they did not, the tribunal might draw an inference of discrimination. This now changes. Unless the employer can provide an innocent explanation, the tribunal must draw the inference of discrimination. As is already proving to be the case with the analogous provisions in the Sex Discrimination Act which are already in force, this shift in the burden of proof is proving to be of great assistance to employees when faced with implausible or inadequate explanations by employers for their less favourable treatment. No longer are such inadequate explanations likely to amount to a valid defence.
The Race Relations Amendment Regulations form part of the many changes in equality law that are currently being introduced as a consequence of European Directives. The Sexual Orientation and Religion Regulations will come into force in December 2003, the new Disability Regulations will be in force in October 2004 followed by Age Discrimination Regulations in 2006. These new Regulations are likely to share aspects of the Race Relations Amendment Regulations such as the new definition of harassment and indirect discrimination, and the change to the burden of proof.
Not complete and consistent
However the harmonisation has not been complete and consistent across all equality laws. So the new Race Relations Amendment Regulations will only apply to discrimination on the grounds of "race" or "ethnic or national origin". This contrasts with the Race Relations Act 1976, which will continue to apply in addition to "colour" and "nationality". It is possible that discrimination may occur only on the grounds of colour or nationality, in which case a tribunal claim will have to be presented under the Race Relations Act. It is, however, much more likely to be the case that the discrimination could also be expressed to be on the grounds of race, in which case a tribunal claim should be presented as including the new Amendment Regulations. Care will therefore have to be taken to ensure that race cases do refer where possible to race and ethnic or national origin to take full advantage of the wider protection potentially available under the 2003 Regulations.