Racial harassment at work – a guide for union representatives (Leaflet 288)

Date: 01 November 2003

Racial harassment at work – a guide for union representatives

All workers are entitled to a working environment free from harassment. This includes an environment that is free from racial harassment. It is the employer’s responsibility to ensure, as far as is possible, that the working environment is free from racial harassment.

This means that the employer is responsible, not only for their own actions, but for the actions of their employees. If employers fail to take reasonable steps to stop racial harassment, then they must accept responsibility for a workplace that is polluted by racial harassment.

This booklet has been produced to provide back-up information and support to union representatives who are taking up this issue with employers.

For further information get in touch with your nearest Usdaw office.

Usdaw members know about racial harassment

• Black check-out operators from as far apart as London and Merseyside have reported racial abuse from customers, and report that their employers have done little or nothing about it.

• At a warehouse in the Midlands, black and Asian staff report having racist graffiti regularly written on their order notes and work equipment.

• At a depot in the Midlands, the supervisor thought that it would be "a joke", to dress up in a Ku-Klux-Klan outfit and prance around black staff and who, when told it was not a joke, told a black worker he had no sense of humour.

Tackling racial harassment

Racial harassment takes many forms but the result is the same - stress, health problems, loss of confidence and real physical injury. It undermines equality of opportunity making the targets of racial harassment feel marginalised and unable to demand their rights.

It can result in black workers leaving their jobs rather than face continuing harassment. Racial harassment is a form of racial discrimination.

Racial harassment is widespread, happens all over the country and many Usdaw members have had to deal with it. It divides workers one from another when all workers need unity. Along with union pressure, there are a number of factors that are making employers feel the need to take action on racial harassment:

• Pressure from legal proceedings that have been taken against them.

• An awareness of the increasing number of harassment cases being pursued at Tribunal.

• The knowledge that since 1994 there is no ceiling on the compensation an employer may have to pay.

• A growing awareness of their responsibilities to deal with racial harassment under the Race Relations Act and the Health and Safety at Work Act.

• A growing recognition of the consequences of negative publicity on their businesses.

• A growing awareness of harassment at work arising from the European Code of Practice on sexual harassment.

• The Protection from Harassment Act came into force in June 1997. This Act prohibits a course of conduct by a person which amounts to harassment of another person and which the harasser knows or ought to know amounts to harassment of the other.

What is racial harassment?

Racial harassment can take many forms. However, one thing is clear, it is behaviour or abuse of a racial nature which is unwanted and personally offensive to the recipient. It is the perception of the target that determines whether harassment has taken place, not the intention of the perpetrator.

Racial harassment can involve a manager, a supervisor, work colleagues, customers, suppliers or contractors. It can include:

• Abusive language, including racist "jokes".

• The display of racially offensive written material, graffiti, etc.

• Physical attacks, threatened assaults.

• Unfair allocation of work.

• Exclusion from normal workplace conversation and workplace events.

Racial harassment is widespread. Too often people do not report incidents of racial harassment because they fear that complaints will not be taken seriously or they do not know how to make a complaint. People making complaints are often made to feel they are rocking the boat, have no sense of humour, and can even end up isolated and victimised.

Very often work colleagues and management see racial abuse at work as something that just has to be put up with. Women workers can often experience a combination of racial harassment and sexual harassment.

Negotiating a policy and a procedure

Every employer should have a policy on sexual harassment and a procedure for dealing with it. Similarly, every employer should have a policy and a procedure for tackling racial harassment.

Negotiating a policy

• Since the main aim is to prevent racial harassment, the policy should define racial harassment and make clear that racial harassment is unacceptable behaviour and that it will be considered a disciplinary matter.

• The policy will need to be communicated to all employees, trainees and job applicants.

• When the employees' duties bring them into contact with the public the policy needs to recognise the employer's responsibilities to prevent and/or deal with harassment from this source. (See Usdaw leaflet No. 296 Abuse is not part of the job!).

• The policy should allow for the appropriate training of management responsible for implementing the policy and for trade union representatives.

• As problems of harassment often involve supervisors and/or line management and can escalate very quickly, complaints need to be handled with sensitivity, speed and confidentiality. It is, therefore, recommended that a special complaints procedure for racial harassment is negotiated.

• Even where an employer has already got an equal opportunities policy or equal opportunities clause in their union/company agreements, it is advisable that a separate specific clause relating to racial harassment is incorporated. This clause should make clear what racial harassment is and that it will be treated as a disciplinary offence. A sample clause is reproduced below.

A sample clause

The union and the employer recognise that all employees have a right to a working environment free from racial harassment and are committed to ensuring that such harassment does not occur. Racial harassment is defined as including:

• Abusive language and racist "jokes".

• Racist name-calling.

• Display of racially offensive written or visual material including graffiti.

• Physical threats, assault and insulting or abusive behaviour or gestures.

• Open hostility to black workers, including organised hostility in the workplace.

• Unfair allocation of work and responsibilities.

• Exclusion from normal workplace conversation or social events, i.e. being "frozen out".

Racial harassment in the workplace will not be tolerated and will be regarded as a disciplinary offence including, where appropriate, gross misconduct. Racial harassment should be considered discrimination under this clause. Grievances under this clause will be handled with all possible speed and confidentiality.

In settling the grievance, where appropriate, every effort will be made to relocate the harasser, not the person harassed. Where harassment involves a member of the public harassing an employee, the company resolves to take action as appropriate, in consultation with the union.

The company undertakes to provide training for management and employees to spread awareness of this issue, to alert all workers to the contents of this policy statement and to the details of the procedures which have been set down to deal with complaints of racial harassment.

This policy will be circulated to all employees, trainees, job applicants and contractors. It will be made known to customers. In conjunction with the union, it will be regularly reviewed for effectiveness and resultant changes notified to all employees.

Negotiating a special complaints procedure

Some key points to include in a special complaints procedure:

• Does the procedure establish a clear union presence? Does it provide for the person being harassed to be represented by the union at all stages? Does it make special provision for the union to arrange representation for both the alleged harasser and the complainant in the event they are both union members?

• Is the procedure clear and easily understood? Does it set strict time limits? Harasser and harassed should know how long the procedure will take, how the complaint will be heard, etc.

• Does the procedure allow for quick investigation by appropriately trained senior staff when the harassment is being carried out by supervisors or managers, or if the matter is not being dealt with appropriately?

• Does the procedure ensure that staff involved in the investigation have been appropriately trained? Is it possible to involve an appropriately trained black member of management in the investigation?

• Without prejudicing the employer's responsibility to investigate properly complaints that are brought to its attention, is it made clear that the maximum possible confidentiality will be guaranteed?

• Will complaints be handled in a way that is sensitive to the needs of the complainant and in a way that, as far as is possible, protects the complainant from further harassment?

• Does the procedure make provision to protect the complainant while the procedure is invoked and after any action, including disciplinary action, is taken?

• In the event of the need to relocate staff, is it made clear that the first option will be to move the harasser and not the person who has been harassed (unless the person who has been experiencing the harassment specifically requests a relocation)?

• Are the penalties, including strict time limits for any periods of suspension of alleged harassers, clearly set down?

• Is there agreement that union representatives should have paid release for training by Usdaw's Education Department in the special complaints procedure?

• Has appropriate means of publicising the procedure been agreed so that all staff are aware of the policy, the procedure and the consequences of their actions?

Supporting a member experiencing racial harassment

Given the nature of the issue, which often makes the target of the harassment feel as if they are the troublemaker if they complain, it is important that union representatives should:

• Treat cases of racial harassment seriously and support the members involved during the investigation and afterwards.

• Take cases up as quickly as possible.

• Establish whether other workers have experienced the problem.

• Advise the worker complaining of racial harassment about what to do and about the procedure to use.

• Before invoking a formal procedure, advise the complainant to ask the harasser to stop. If they want you to do so on their behalf, they should accompany you. This will prevent the alleged harasser claiming later that no-one objected to her/his behaviour.

• Report the incident(s) to management.

• Keep a record of each occurrence of the offending conduct, copies of any letters sent to the alleged harasser about her/his conduct and notes of any meetings about the incident(s).

• Advise the member that if the matter is not resolved through the procedures, she/he may be able to take the matter to an Employment Tribunal. To comply with Employment Tribunal time limits (a claim must be lodged within three months of the alleged act of discrimination) it may be necessary to lodge a case with the Tribunal before the internal procedure is exhausted.

• Seek the support, with the member's agreement, of other workers in order to reduce the risks of isolation and victimisation.

Harassment counsellors

Some companies are now offering staff who have experienced harassment the opportunity to receive counselling. Genuine counselling has been shown to be beneficial in helping people come to terms with difficult or stressful experiences. It does this by providing space to talk in a supportive and non judgmental setting. The counsellor will help work through the aftereffects of the experience.

A survey of Usdaw members' experiences of counselling at work has shown that, where genuine counselling exists, it is valued and seen as beneficial by employees. Genuine counselling should not be confused with disciplinary counselling, which is used by many employers.

Disciplinary counselling refers to the informal interview that takes place prior to using the disciplinary procedure. Genuine counselling bears no relation to this and is intended to help employees who are in distress. This form of counselling is voluntary and respects the right of the complainant to make their own decisions.

If you are involved in negotiating with your employer over the introduction of a workplace counselling service you should use the following checklist. This will help you to ensure that the service is properly run.

• The counselling service should be confidential. Details of an employee's case should not be shared with the employer even if the counsellor is a company employee.

• The counsellor should hold a recognised counselling qualification such as a Diploma or MA in Counselling. They should also be accredited by a professional counselling body. This is likely to be the British Association for Counselling.

• The counsellor should be receiving regular supervision from another qualified counsellor.

• Counselling is not an alternative to pursuing a case through the harassment procedure.

• The counsellor should have no role in the investigation of the case, nor should they act as an advocate. The role of the counsellor is separate from the advice and representation which an Usdaw/Sata shop steward or Area Organiser can provide.

• Counselling is best provided by someone who is not an employee of the company. In-house counsellors may not be able to guarantee the same degree of confidentiality as an external provider.

• Union negotiators should try to persuade companies to use an external counselling service.

Wider trade union responsibility

Usdaw recognises that the union has a wider responsibility to ensure that members attending union meetings or conferences or representing the union, are not subjected to racial harassment.

The Education Department, for example, issues guidelines to all members and Officials participating in residential union training courses. Guidance is also given at the Annual Delegate Meeting.

Where members of different unions are involved, procedures do not generally exist.

Usdaw representatives and Officials need to be particularly vigilant so that support and assistance is available if a member/union representative experiences harassment at meetings, courses or conferences.

Appendix 1

Racial harassment and the law

Racial harassment can be direct discrimination under the terms of the Race Relations Act 1976. The Act makes discrimination on racial grounds unlawful. Racial grounds refers to race, colour, nationality (including citizenship), ethnic or national origins.

A person complaining of racial harassment needs to show that she/he has been less favourably treated because of their race and that the alleged harassment was to their detriment.

Under the Race Relations Act, an employer can be held liable for the actions of an employee when they occur "in the course of their employment", even if the actions occur without the employer's knowledge or approval. So even if the employer does not know about the harassment, the employer can be held liable.

The Race Relations Act provides a defence for an employer if the employer can show that reasonable steps have been taken to prevent discriminatory actions by employees. The employer must show the actions that have been taken to stop racial harassment (for example, the steps suggested in this booklet).

The Act also states that anyone involved in bringing proceedings, making allegations or giving information concerning racial discrimination, is protected against victimisation. This applies not only to the complainant, but also to the witnesses.

Recent cases have established that employers have a duty, where reasonably possible, to protect employees from being harassed by any third party - whether customer, client or member of the public - with whom they have to deal.

As well as obligations under the Race Relations Act, employers have a duty to provide a safe and healthy working environment. Where racial harassment results in an injury to an employee's health or places them under stress, the employer might be held in breach of their obligations under the Health and Safety at Work Act and the Management of Health and Safety at Work Regulations.

Certain acts of racial harassment may amount to unlawful assault, giving rise to civil or criminal liability.

Appendix 2

Using Usdaw's Legal Services

Racial harassment at work is an employment problem covered by the union's Legal Service.

Complaints can be made to an Employment Tribunal using form IT1 which is available from your local Job Centre. The member must submit the IT1 within three months of the date of harassment.

Where a Tribunal application is contemplated, the Legal Department should be informed immediately and supplied with full details of the case and a completed Usdaw BL2 form.

To avoid breaching time limits it may be necessary to make a complaint to Tribunal while the problem is being dealt with using company procedures. Experience has shown it is important the employer understands why the complaint to the Tribunal has been made and that the complaint will not be heard pending the outcome of in-company procedures. This should be stated on the IT1.

In race discrimination cases there is also a special procedure available called a Section 65 Questionnaire. This enables the complainant to put questions to the employer and/or the individual who is believed to have discriminated against her/him.

The Questionnaire is designed to help the complainant:

• to decide whether or not to take a case to Tribunal and, if so;

• to obtain essential information to present the case in the most effective way.

Questionnaires must be submitted before the IT1 form is submitted or within 21 days of the date of submission of the IT1 form. Questionnaires may sometimes be submitted later with the special permission of the Tribunal.

Section 65 Questionnaire forms may be obtained from the local Job Centre and from the Legal Department. The questions should be carefully drafted and the Legal Department will advise on framing the questions, provided they are contacted in sufficient time.

Contacts

Contact your local Usdaw office or The Secretary, Race Relations Committee, Usdaw, 188 Wilmslow Road, Manchester M14 6LJ (Tel: 0161-224 2804).

Racial harassment at work - a guide for union representatives (Leaflet 288) was correct at date of publication November 2003.

Download File:
Racial harassment at work – a guide for union representatives [ pdf ]

If you do not have the software to download this attachment you can download it here.
This is a large document - which may take some time to display.
If you have problems viewing it, you can 'download' this file by 'right-clicking' the link, and saving the document to your desktop. Then, open the saved document in the normal manner.
[ Get a player/reader for this file here ]

 Printer Friendly Page

 Email to a Friend

© 2003 (USDAW) Union of Shop, Distributive and Allied Workers
This page: http://www.usdaw.org.uk/equality/resource_library/1070468401_4345.html
Last Modified: Thursday, 11-Sep-2008 20:55:28 EST