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Racism Causes Big Bother

» Posted on: 18 January 2007
» Posted by: Oliver McCann
» Service area: Employment

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Whilst a massive leap in viewers may be the reason that Channel 4 have turned a blind eye to the race row which has erupted on this year's celebrity Big Brother, we look at the impact that similar behaviour would have on the work place.

The programme has certainly stirred up worldwide debate as to whether the actions and comments of Jade Goody, Danielle Lloyd and Jo O'Meara directed towards fellow contestant and Bollywood star Shilpa Shetty amounts to racist bullying.

The reality is that the behaviour shown on the programme reflects what can and does occur in the workplace.

So what would an Employment Tribunal make of all this if the same conduct occurred in the Employment sphere?

In 2003 the Race Relations Act was amended to include a definition of racial harassment which makes it easier now for a complainant to prove discrimination. Harassment is defined as "subjecting a person to unwanted conduct which violates that person's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person".

There is no doubt that Shilpa Shetty would satisfy a Tribunal that she has been subject to harassment. She has been singled out (possibly because of some of her quirks) by 3 individuals who have, together, been aggressive, offensive and intimidating towards her.

However for the conduct to be racial harassment it must be directed on "racial grounds". It is this latter aspect where the debate seems to lie. Channel 4 say it is simply a cultural and class clash suggesting that they cannot determine that comments such as "go back to the slums", "the Indian" ‘f… off home‘ she can't even speak English anyway" are actually racially motivated.

One can perhaps understand the difficulty in understanding the motivations behind Jade Goody!

A Tribunal would, however, simply ask "would they have spoken those words or behaved in that manner towards Shilpa Shetty, but for Shilpa's race?"

Race does not need to be the sole reason for the behaviour, just a significant influence. Nor is a conscious racial prejudice or motive required.

Racial words do not have to be spoken. It is the treatment and the reason for it which is relevant. In most cases the issue will be whether the surrounding circumstances (including the harassers' treatment of other people) yield evidence from which a Tribunal can draw an inference that there are racial reasons for the behaviour.

Once inferred the harassers' are on the back foot having to prove otherwise.

In this scenario we have the benefit of video evidence (which would be extremely rare in an Employment situation) which includes discussions behind Shilpa's back. Jade allegedly called Shilpa "Shilpa Poppadum". Danielle Lloyd said she should "F… off home". Shilpa has been asked whether she lives in a "house or a shack". Would a fellow white housemate have been asked this question? Most likely not!

Armed with this evidence a Tribunal would almost certainly make a finding that the harassment was indeed racially motivated.

Remember if Jade Goody and co had been your employees then a Tribunal could find you, as the Employer, vicariously liable for their actions under the Race Relations Act.

To rely on the statutory defence you would have to demonstrate you have taken all reasonable steps to prevent discrimination of this nature occurring. This would include having an Equal Opportunities policy and implementing it at all levels with training and dissemination.

Note also that had Shilpa been an employee she may also have brought a claim against you for Constructive Unfair dismissal and a claim under the Protection of Harassment Act1997.

The programme has demonstrated just how easy these situations can arise in every day life and serves as a reminder that you need to be vigilant to this as an employer.

Copyright 2006 - 2010 Taylors Solicitors

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