The Legal 500

On 6 April 2006 the Commission for Racial Equality’s new statutory Code of Practice on Racial Equality in Employment came into effect. This Code replaces the CRE’s original Code of Practice, which was published in 1984.

The Code is not legally binding and breach of the Code does not amount to discrimination. However, employment tribunals will have regard to the extent to which an employer has complied with the Code's recommendations and, in many cases, failure to adhere to the recommendations can lead to an adverse inference of discrimination on the grounds of race being drawn by the tribunal.

The Code outlines employers' legal obligations under the Race Relations Act 1976 (RRA) and contains general advice on the policies they should follow to safeguard against discrimination and harassment. It also includes detailed recommendations on procedures and practice.

The new Code introduces a number of changes. Employers should get up to speed to avoid finding that they have acted contrary to the new recommendations, which would put them in a difficult position should they be involved in race discrimination proceedings.

Key changes

Key changes to the Code include the following:

The Code has retained its recommendations that employers should have an equal opportunities policy. However, it goes one step further and suggests that employers should actually draw up an ‘equal opportunities action plan' with a view to actively promoting the equal opportunities policy and ensuring that all workers understand it, and provide training for those who have particular responsibilities under the policy.

The Code places a significant emphasis on the training of workers. It states that in the event that legal proceedings are brought against an employer under the RRA, an employer may find it easier to defend itself if it is able to demonstrate that basic equal opportunities training received by all workers includes the following:

In the future it is likely that employees who bring claims under the RRA will explore the extent to which such training has been provided by an employer, and will exploit any failure of the employer to comply with these recommendations by asking the tribunal to draw an adverse inference.

Monitoring

The Code's recommendations in relation to equal opportunities monitoring have also been expanded. It is suggested that to provide effective information the categories used in the monitoring exercise should be compatible with those used in the 2001 population census. It recommends that where an employer wishes to include a group that is not separately listed in the census classification, this should be added as a sub-group of the appropriate main group in the census classification system. Employers should also be aware that, following the Court of Appeal's decision in West Midlands Passenger Transport Executive v Singh, the records of the ethnic composition of applicants and employees compiled in accordance with the recommendations of the Code are discoverable in tribunal proceedings.

Racial Equality Targets

A new section introduced in the Code explores the issue of ‘racial equality targets'. The Code recommends that employers should consider setting up racial equality targets as a means of planning the reduction of any significant disparities between racial groups. It suggests that a racial equality target could represent improvements in representation for particular racial groups or progress towards equality of treatment. It stresses that racial equality targets are not quotas and that restricting recruitment to people from particular racial groups would be positive discrimination and unlawful. It is suggested that employers should consider publishing their racial equality targets, for example in their annual reports, to demonstrate how the organisation is working towards fair participation.

External Contractors

The Code also recommends that employers encourage companies and other organisations with which they contract for goods, facilities and services to take practical steps to promote equality of opportunity in their own employment practices. It states that employers should therefore:

1) make acceptance on tender lists and the award or renewal of contracts conditional on organisations providing information about any findings of racial discrimination or harassment and adopting the recommendations of the Code;

2) include terms and conditions in contracts that require contractors to follow the recommendations of the Code; and

3) encourage individuals and organisations from under-represented racial groups to tender or compete for contracts.

Comment

Employers cannot afford to be ignorant of the vastly expanded provisions of the new Code. Employers should assess whether they meet its recommendations and guidance and, if not, what areas would benefit from improvement.

The underlying purpose of the Code is to ensure that employers understand their obligations under the RRA and develop good employment practices to create an environment that is free from discrimination. Compliance with the Code will help foster a positive working environment and a loyal workforce. In addition, adherence to the Code will put employers in a better position to defend themselves against any race discrimination claims. As complying with the Code's recommendations may take some time, employers are advised to embark upon this process sooner rather than later.

The full Code can be downloaded at:

www.cre.gov.uk/downloads/employmentcode.pdf.

West Midlands Passenger Transport Executive v Singh [1987] IRLR 351