The following extract is taken from the Commission for Racial Equality :
Under the Race Relations Act 1976, harassment on racial grounds is regarded as direct discrimination, because it constitutes a 'detriment' in employment or in the way a service is provided.
The race regulations make harassment on grounds of race or ethnic or national origin a separate unlawful act. This will occur when a person, A, subjects another person, B, to unwanted conduct on grounds of race or ethnic or national origin that has the purpose or effect of:
- violating B's dignity; or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
Harassment on grounds of colour or nationality will continue be treated as possible direct discrimination under the Race Relations Act 1976.
As the new statutory definition of harassment reflects the law as currently applied by the courts and tribunals, it is unlikely that the change introduced by the race regulations will increase the range of circumstances in which complaints of harassment are brought. However, two changes in the law should be noted:
The new definition of harassment does not require a comparator, since it is not a form of discrimination but a separate, unlawful act.
The test of whether conduct amounts to harassment will be an objective one – the reasonable person test. This has been criticised for setting a higher test than the one currently applied by the courts and tribunals.
For example, an Asian employee who is regularly called ‘boy’ by a manager does not need to show that a white employee would have been treated differently. However, if the manager called every male employee ‘boy’ then the Asian male employee would need to have made it clear that he felt harassed by this behaviour.
More details are available from the Commission for Racial Equality