Leader magazineASCL - Association of School and College Leaders

Race discrimination guidance

Chess piece

There is a tendency to be intimidated when it appears that an allegation of race discrimination is made. It is probably best that way but recent cases suggest that while schools and colleges need to be alert to their responsibilities, they do not need to collapse every time they are accused of prejudice.

In Abiola v North Yorkshire County Council, a teacher claimed that the council and a string of schools were guilty of discrimination in failing to put him on the county's 'pool' of supply teachers and/or employing him. In aid of his case he presented the statistics for employment in North Yorkshire which showed that 95.1 per cent of teachers in North Yorkshire were ethnically white British.

The employment appeal tribunal was unimpressed. The council and the schools were undoubtedly in breach of their statutory duty to monitor their employees (and also to consider what they could do to remedy the imbalance) but that was not discrimination aimed at the teacher personally, and in a discrimination case it is a matter of a detriment to the individual.

More importantly, there were ample other reasons which would have precluded him from employment, not least his refusal to produce references from previous employers.

This question of reasons is crucial. To put the onus on the employer to show that it has not discriminated, the employee has to produce facts that tend to show that there has been discrimination. A difference in race cannot in itself lead to an inference of discrimination.

This is so even where a case shows gross unfairness. In Arhin v Enfield PCT there were two employees of a primary care trust (PCT), both of whom had the same job description. There was a reduction of staff. One employee, who was a white male, was slotted in. The other, who was a non-white woman, was made redundant, even though she had at least equal qualifications.

However, as the EAT pointed out, "an employer only has to satisfy some other reason (than race). The reason does not have to be inherently justifiable. It does not have to be a good reason in a moral sense. It simply has to be a reason which has nothing to do with race."

This case also, however, raises the question of up-to-date and accurate job descriptions. The employer's defence was that although the two people concerned had the same job description, they were not in fact doing the same job.

While the tribunal accepted that this was not uncommon or a fatal flaw, it was not at all impressed that an employer who was purporting to 'slot in' someone on the grounds that he was already doing much the same job, was slotted in to a post for which no job description could be produced.

Moreover, an employer cannot just claim something was a mistake. A tribunal will want to know why the employer made a mistake. Did s/he check with human resources? What was the response when alerted to the issue?

There are going to be analogous situations in future years in schools and colleges. It will be worth learning the lessons before things go wrong. It might, for example, be useful to check job descriptions against actual jobs being done.

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