Specific things to consider in your racial harassment claim

Laying out your claim

When you are claiming race harassment at Tribunal, you want to clearly argue that you have been subjected to unwanted conduct related to race (whether or not you are of that race yourself). This needs to have the purpose or effect of violating your dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for you. 

Some examples of harassment related to race are:

• A white worker sees a Black colleague being subjected to racially abusive language, which creates an offensive environment for them.
• A white employee at a private ultrasound clinic makes a comment after an incident with a client, that “Why do black women think it’s acceptable to expose themselves”. She then refuses to say sorry to her Black colleague when she confronts her about it.
• An agency worker hired to work  over the busy Christmas period asks a Black colleague to “Excuse me big gorilla”. Over a year later, the company then allows the agency worker to work the same shift as the affected employee, having committed to not allowing this to happen again.

With racial harassment, your employer can be liable for the acts of its employees, as well as the employees being personally responsible. 

Proving your claim

You don’t need to attach evidence to a Tribunal ET1 claim, but it’s a good idea to back up your claims by mentioning the evidence you intend to use. For harassment on the basis of race claims, people typically refer to evidence such as text messages, emails, letters, meeting notes and witness evidence.

What you can ask for in your harassment related to race claim

If you’re successful in a Tribunal claim, you will be awarded a “remedy”. This mainly includes financial compensation, like loss of earnings. It can also include some non-financial remedies too.

Common remedies people ask for at Tribunal

Some of the key remedies you can ask for at Tribunal are:

• The money you have lost from being out of work, or working in a lower-paid job.
• The money that you expect to lose in the future from being out of work, or working in a lower-paid job.
• Wages that you are owed, including holiday pay and notice pay.
  
  
  

Discrimination-specific remedies

As well as the common remedies that you can ask for, discrimination-specific claims also have the option to include an “injury to feelings” remedy. This is compensation which you can be awarded when you have been hurt or distressed because you have been discriminated against.

Injury to feelings is generally awarded within one of three “Vento bands” depending on severity.

For example, Musa was awarded £9,000, plus interest, for injury to feelings after his employer referred him to social services because they thought there was a risk that he might take his daughter back to his home country of Nigeria for the purposes of arranging FGM. His employer didn’t try to discuss this with Musa before making the referral. In actual fact, Musa was sincerely opposed to the practice of FGM and he wrote in his witness statement that he was “falsely accused of violent child abuse against my only beloved daughter”.

The Tribunal decided that this case met the test for harassment connected to Musa’s race, as his employer’s concerns arose in part because he was from Nigeria, which is a country in which FGM is lawful. He also made a claim for direct race discrimination, which was unsuccessful. 

Real race harassment cases you can learn from

Summary: a colleague made some offensive comments which related to a cleaning supervisor’s race and/or the race of his family. This happened in the course of one conversation. The colleague later apologised, however the cleaning supervisor didn’t accept the apology and didn’t  want to work with them any more. The company where they both worked failed to effectively deal with the situation.

Total award: £6,500 (plus interest)

Outcome: the Tribunal found that the cleaning supervisor had been harassed on the grounds of race. He had also made a claim for direct discrimination on the grounds of race, but this was not successful. 

Summary: a teacher who was a French national working in a school in London was criticised by his headmaster. The headmaster criticised the fact that the teacher was not a native English speaker.

Total award: £6,500

Outcome: the Tribunal found that the remarks were related to the teacher’s nationality, and that he had experienced racial harassment. He also made claims for direct and indirect discrimination, however those were not successful.

Further reading

• Equality Act 2010 section 26
• Equality Act 2010 section 40
• Employment Statutory Code of Practice (pages 92-98)