The Equality Act 2010 protects individuals from unlawful treatment because of a person’s ‘race’, which includes colour, nationality and ethnic or national origins.

In law, discrimination because of race can take one of four forms

  • Direct
  • Indirect
  • Harrasment
  • Victimisation

For example, if an employer gave a BAME (black, Asian, and minority ethnic) employee a final written warning for leaving work early without permission, but did not discipline a white worker for the same offence.

Or, a black employee being overlooked for promotion after failing to pass commercial awareness criteria imposed by the employer, that white workers were not required to demonstrate.

Black professional reading paper

Direct race discrimination

If an employer can not provide an innocent explanation for the less favourable treatment, this would suggest the reason is the employee’s colour.

Not your own race

It is also possible to be directly discriminated against because of the race of someone else (associative discrimination). For example, a white person not being offered a job because they have an Asian partner.

Examples of race discrimination

In recruitment, requiring fluency in English when fluency in English is not necessary for the particular job, or stipulating qualifications only obtainable in Great Britain.

Or having uniform requirements that preclude wearing a turban, or holiday rules that prevent workers taking holiday over Eid which could indirectly discriminate against workers of Asian national origin.

Racial harassment

Racial harassment as defined in the Equality Act 2010 is unwanted conduct related to a person’s race that has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

For example, racist language or commentary directed toward a person or in their presence (including about other workers of a different race).

Racial victimisation

Race based victimisation is when someone is punished for complaining about race discrimination in some way or other.

For example, someone is selected for redundancy because they raised a grievance complaining about race discrimination.

How to prove discrimination

The standard of proof in discrimination cases is the normal civil standard, namely whether, on the balance of probabilities (ie ‘more likely than not’ or 51% likely) discrimination occurred.

The burden of proof has two stages:

  1. First the worker must prove facts from which an employment tribunal could conclude, in the absence of an adequate explanation from the employer, that discrimination had occurred (not could have occurred). This is often referred to as the worker establishing a ‘prima facie’ case.
  2. If a prima facie case is established, the burden of proof then shifts onto the employer to prove that it/he/she did not commit discriminatory conduct.

Evidence in direct discrimination cases

Employment tribunal cases where there is strong, direct evidence of discrimination are rare. Cases where there is clear evidence of discrimination tend to settle without a hearing because most employers want to avoid the adverse publicity those hearings might attract.

In most discrimination cases an employment tribunal will have to make a decision based on what ‘inferences’ it can draw from the presented facts. As a result, there can often be lots of potentially relevant inference evidence which claimants can be tempted into using to prove their discrimination case. In most circumstances, claimants should resist that temptation as good points in a case can be discredited by a claimant arguing weak points which may be difficult to prove and lead to excessive and inconclusive evidence. This can have the effect of clouding the real issues, detract from any stronger evidence and unnecessarily lengthen the hearing.

Discrimination cases are generally more complex than other types of employment tribunal claims, with the average discrimination hearing being much longer than other hearings. This makes evidence selection an even more important part of preparing a discrimination case.

Frequently asked questions

Do I need comparative evidence?

Because in direct discrimination cases you need to show that you have been treated less favourably because of your race, there is an inherent requirement to establish the someone (‘the comparator’), who did not or would not suffer unfavourable treatment. In most cases it is impossible to show a real-life comparator where all the relevant circumstances are the same, and so it is necessary to present a hypothetical comparator and consider how they would have been treated. In practice, a claimant’s representative will often present both real and hypothetical comparators in an employment tribunal case.

Is my employer responsible for acts of discrimination by employees?

Employers will generally be liable for acts of discrimination by employees who are acting in the course of their employment. This is known as vicarious liability. Discrimination claims can also be brought directly against individuals, although it is rare for claims to be brought against an individual without a claim also being brought against the employer. If claims are brought against both the employer and individual(s), the employer can decide whether to try to defend itself separately from the individual(s) by arguing that it took all reasonably practicable steps to prevent the discrimination.

Do I need to raise a grievance?

The law does not require you to raise a grievance but, if you are still employed, in most cases you should do so before bringing a claim for race discrimination, which you are entitled to do whilst you are still employed.

Do I qualify to bring a race discrimination claim?

Yes, if you believe you have been discriminated against because of your race (including colour, nationality and ethnic or national origins) there is no length of service or other qualifying requirement.


When a claimant is successful in a discrimination case, the employment tribunal can make recommendations and award compensation.

Unlike in unfair dismissal claims, there is no ceiling on the amount of compensation an employment tribunal can award in a discrimination case.

Compensation consists of financial loss caused by the discrimination including past and future loss of earnings, loss of opportunity and ‘injury to feelings’.

Injury to feelings compensation is awarded to reflect the degree of hurt felt by a particular claimant as a result of the discrimination, so will vary from claimant to claimant.

The Court of Appeal identified three broad bands for injury to feelings (sometimes referred to as “Vento” bands:

  • The top band (normally £27,400 – £45,600) is for the most serious cases, e.g. where there was a prolonged campaign of harassment leading to serious ill-health.
  • The middle band (£9,100 to £27,400) is for serious cases which do not merit the top band.
  • The lower band (£900 – £9,100) is for less serious cases, e.g

Our expert discrimination and harassment partners have a wealth of experience representing individuals who have faced race discrimination and harassment at work. Over the years we have achieved £millions for our clients in negotiated settlements and employment tribunal claims in race discrimination matters.

Contact us

If you have been discriminated against at work it is important to seek legal advice at the earliest opportunity.

Contact Us