The Race Relations Act 1976 makes it unlawful to publish advertisements that discriminate on racial grounds, or to make arrangements for such advertisements. This includes advertisements displayed on noticeboards or listed in staff bulletins. Both publishers and advertisers are legally responsible for ensuring that advertisements are lawful.

There are circumstances, however, when employers and other organisations may claim exemption from this prohibition. This guide is primarily for employers who want to use the exception provided by section 5 of the Race Relations Act to recruit people from a particular ethnic group for certain jobs.

What is racial discrimination?

The Race Relations Act 1976 makes discrimination on racial grounds unlawful in employment, training, education, and the provision of goods, facilities and services (both in the private and public sectors). The Act defines two main types of discrimination: direct discrimination and indirect discrimination.

Direct discrimination

Direct discrimination occurs when someone is treated less favourably on racial grounds. Racial grounds include not only grounds of race but also those of colour, nationality, citizenship, and ethnic or national origin.

Example: A dress manufacturing company advertises in the local newspaper for a Turkish machinist.

Indirect discrimination

Indirect discrimination occurs when rules, requirements, or conditions that appear to be fair — because they apply equally to everyone — can be shown to put people from a particular racial group at a much greater disadvantage than others, and the rules cannot be objectively justified. A racial group may be defined by race, colour, nationality (including citizenship), or national or ethnic origin.

Example: An advertisement asks for ability to speak Bengali. This requirement discriminates indirectly against people who do not speak Bengali, and will be unlawful unless it can be justified by the nature of the job. For example, it would be justifiable to ask for a Bengali speaker if the job involves working with people who can communicate well only in Bengali.

Example: An advertisement invites applicants who speak English as their mother tongue. This requirement, too, discriminates indirectly against people who speak English fluently, but not as their mother tongue. This kind of requirement will rarely be justifiable. If an especially high standard of English is needed for a particular job, it would be better to ask for just that: ‘a very high standard of written and spoken English’, or, alternatively, ‘fluent English’.

Example: The Race Relations Act does not cover discrimination on religious grounds, but advertisements inviting Muslim or Christian applicants may discriminate indirectly against some racial groups, and the requirements must be justified by the nature of the job. A religious requirement may be justifiable for jobs connected with a church, temple, mosque, etc, and, possibly, religious organisations.

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Discriminatory advertisements

Section 29 of the Act says:

It is unlawful to publish, or cause to be published, any advertisement that indicates or might reasonably be understood as indicating, an intention by a person to do an act of discrimination ...

The test of what ‘might reasonably be understood as indicating an intention’ to discriminate is whether an ‘ordinary, reasonable person with no special knowledge’ will think the advertisement is discriminatory. This interpretation was given in a ruling by the House of Lords. Thus, if someone quite reasonably concludes from an advertisement that the advertiser intends to discriminate on racial grounds, the advertisement is likely to be unlawful, whatever the advertiser’s actual intentions.

Section 78 of the Race Relations Act puts a very wide construction on the term ‘advertisement’. It includes:

Every form of advertisement or notice, whether to the public or not, and whether in a newspaper or other publication, by television or radio, by display of notices, signs, labels, showcards or goods, by distribution of samples, circulars, catalogues, price lists or other material, by exhibition of pictures, models or films, or in any other way, and references to the publishing of advertisements shall be construed accordingly.

In the case of CRE v Dutton (1989) IRLR 8, the Court of Appeal held that a handwritten notice in a pub window constituted an advertisement.

Under the Race Relations Act, discrimination is not unlawful in certain circumstances, but it is nevertheless unlawful to publish a discriminatory advertisement. For example, a private household can lawfully refuse to hire someone who is not from a particular racial group, say, as a chauffeur or cleaner, but it cannot lawfully advertise for someone from that racial group. As the Court of Appeal remarked in the case of London Borough of Lambeth v Commission for Racial Equality:

Subject to the specified exceptions, any discriminatory advertisement is unlawful, even though the act of discrimination advertised might itself be lawful.

We examine these exceptions below.

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Exceptions to section 29

The Race Relations Act makes racial discrimination unlawful except in certain clearly specified circumstances:

• When being from a particular racial group is a ‘genuine occupational qualification’ for a job [ss 5, 7(3), 10 (3)]
• When an organisation is taking positive action to encourage people from a certain racial group to apply for a job or training because they are underrepresented in the organisation or at certain job levels [ss 35 — 38]
  Note: Section 37 of the Race Relations Act says that employers may restrict training for certain kinds of work to people from a particular ethnic group when theyare underrepresented within the organisation or at certain job levels. Section 35 says that making arrangements to meet the special needs of people from a particular racial group in educatioin, training, welfare or any ancillary benefits is not unlawful
• When a job involves working outside Britain and the advertisement calls for someone of a particular nationality (it remains unlawful to stipulate the person’s colour, race, or ethnic or national origin) [s 29(3)]
• When the discrimination is authorised by statute; for example, there are nationality rules for employment in the civil service, or for jobs related to national security [ss 41, 42 and 78(a)]
• When an employer wants to train someone who is not ordinarily resident in Britain, and who will use the skills acquired outside Britain [ss 6 and 7 (4)]
• When an employment agency is advertising an employer’s discriminatory preferences, and these are lawful [namely, under section 5, 6, or 7(3) or (4)]
• When the main object of those associations that are covered by the Race Relations Act is to provide the benefits of membership (whatever these might be) to people of a particular racial group; the association may not, however, discriminate on the basis of colour [s 26]
  Note: Only associations with more than 25 members are covered by the Race Relations Act
• When an advertisement stipulates nationality, or place of birth, or length of residence in a particular place or area as a condition for entering a competition, or representing a country, place, area, or related association in any sport or game [s 39]
• When a charity is legally permitted to provide benefits for members of a particular racial group as defined by race, nationality, citizenship, and ethnic or national origin, but not by colour [s 34]

Publishers should ask employers and other advertisers who claim exemption for their advertisements under the Race Relations Act to quote the relevant section of the Act, and provide any other information the publishers may need to satisfy themselves that the advertisements are lawful. The text of an advertisement should also make it clear to readers why the exception applies to the job.

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Genuine occupational qualification

Section 5, which makes it lawful to discriminate when ‘being from a particular racial group is a genuine occupational qualification,’ is the exception most frequently used by employers who need to restrict applications for a job vacancy to people from a particular racial group. However, being from a particular racial group is a genuine occupational qualification for a job only in the following circumstances:

• To achieve authenticity [Section 5(2)(a) and (b)]
  The job involves a dramatic performance or other entertainment, or modelling for artistic or photographic work, and someone from a particular racial group is needed to achieve ‘authenticity’; that is, the role cannot be reasonably or realistically presented by someone from another racial group. Advertisements based on this exception should make it clear why actors or models from a particular racial group only should apply. Section 5(2)(a) and (b) cannot be used to achieve integrated casting, or to ensure racial balance either within a company or organisation, or between the performers and a multiracial audience. Example: A film company is auditioning for A Passage to India and requires actors of Asian ethnic origin. Section 5(2)(a) of the Race Relations Act 1976 applies.Example: A theatre company requires black actors for street scenes in a multiracial neighbourhood. Section 5(2)(a) of the Race Relations Act 1976 applies.
• To create a particular mood or ambience [s 5(2)(c)]
  The job involves working in a restaurant or bar that serves food and drink from a particular country or region, and the restaurant wants to create the right ambience. This permits a Chinese restaurant, for example, to advertise for Chinese waiters and waitresses — but not for a Chinese cook, whose work is ‘behind the scenes’, as it were, and could be done by anyone who has the necessary skills.
• To provide personal services [s 5(2)(d)]
  The job involves providing clients from a particular racial group with personal services related to their welfare, and the services will be provided most effectively by someone from the same racial group.
  Employers and organisations qualify for exemption even when the job in question only involves doing section 5 duties for some of the time.

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When section 5 may not be used

• Employers and other organisations cannot claim exemption from the Race Relations Act under section 5 if they already have employees from the racial group in question, and:
  
  • The employees are capable of carrying out the duties covered by the exception.
  • It would be reasonable to ask them to take on these duties.
  • There are enough of them to be able to fulfil the duties satisfactorily, and without undue inconvenience [s 5(4)].
• Employers should be careful that they do not indirectly discriminate against ethnic minority employees who are asked to take on section 5 duties. The term, ‘without undue inconvenience’ can mean that the employer’s business will not be adversely affected as a consequence of asking some staff to take on additional duties, or reorganising the business so that they can do so.
• Employers cannot simply assert that being from a particular racial group is a genuine occupational qualification; they must be able to justify the requirement objectively in each case.
• Employers cannot use section 5 to match staff and clients in terms of colour or ethnic group.
• Employers cannot use section 5 to deal with underrepresentation of ethnic minority employees. This can only be achieved by taking the following steps:
  
  • Implementing a comprehensive equal opportunities policy, as recommended in the CRE’s Race Relations Code of Practice in Employment.
  • Setting equality targets or objectives, so that ethnic minority staff are fairly represented in the organisation.
  • Taking positive action to help ethnic minority applicants improve their job prospects.

Problems of interpretation

We discuss below the meanings of some of the terms used in section 5, to help employers and publishers ensure that the advertisements they want to publish are lawful. The relevant passages of the Act are quoted first, to make it easier for you to follow the argument:

Section 5 (2) Being of a particular racial group is a genuine occupational qualification for a job only where...
(d) the holder of the job provides persons of that racial group with personal services promoting their welfare, and those services can most effectively be provided by a person of that racial group

‘Personal services’

‘Personal services’ are services that concern or affect the welfare of an individual. They should involve a degree of intimacy between the person providing the services and the client, and some direct, face to face contact is likely.

Example: Residential social worker of Asian ethnic origin required for hostel for homeless girls, many of whom are of Asian origin. Duties include counselling to resolve personal problems, and mediating between the girls and their families. Section 5(2)(d) of the Race Relations Act 1976 applies.

The post of a manager who is responsible for these services, but does not actually provide them, would not qualify for exemption under section 5(2)(d). Similarly, the post of a policy development officer, which involves developing personal services for ethnic minority communities, but not actually delivering them, would not be exempt under section 5(2)(d).

‘... those services can most effectively be provided ...’

Personal services may be provided by anyone, irrespective of the racial group to which they belong. However, if the services are more likely to achieve their objective when they are provided by someone from the same racial group as the client, section 5(2)(d) may be used to advertise specifically for someone from that group, so long as all the other conditions are also met. The advertiser must be able to show that the cultural, linguistic, or ethnic backgrounds of the people who will be receiving the services are such important factors in providing these services effectively that someone from the same racial group will be best placed to ensure this.

Example: A social worker of West African origin is required to work for an adoption agency in assessing and placing children for adoption and fostering. A high proportion of children awaiting adoption or fostering are of West African origin, and an ability to develop a supportive relationship with each child, and knowledge of their family background, will be essential requirements for the post. Section 5(2)(d) of the Race Relations Act 1976 applies.

‘... the same racial group ...’

Section 3(1) of the Race Relations Act defines a racial group by race, colour, nationality or citizenship, and ethnic or national origin. A racial group defined by colour will include several ethnic groups, and an organisation or employer inviting applications from black people may find it difficult to show that they will be able to provide personal services ‘most effectively’ to clients who are not of the same ethnic origin as themselves. In such cases, it will be for an industrial tribunal or court to decide, on the facts of the case, whether the personal services in question could be provided ‘most effectively’ by someone of the same colour, but not the same ethnic origin, as those receiving the services.

The CRE’s advice is that racial groups should be defined as precisely as possible, that is, by reference to ethnic origin. Occasionally, however, it may be possible to define a racial group by colour when several ethnic groups need the same personal service: for example, victims of racial harassment and violence directed at anyone who is not white.

Example: Afro-Caribbean/Asian/Black counsellor required for tenants’ association on an estate with many residents of Afro-Caribbean and Asian origin who have suffered racial attacks and abuse. The counsellor will be required to counsel and support distressed individuals and families, act on their behalf in seeking help from the council, and set up support networks. Section 5(2)(d) of the Race Relations Act 1976 applies.

Section 5 (3) Subsection (2) applies where some only of the duties of the job fall within paragraph (a), (b), (c) or (d) as well as where all of them do.

‘... some or all of the duties of the post’

Section 5(3) allows employers and organisations to claim exemption even when only some of the duties of the job meet the requirements of section 5(2). The job description should make it clear that section 5(2) duties are included in the job, even when only a single task falls within section 5(2)(d). The post of the manager of a social services department may therefore qualify for exemption under section 5(2)(d) because it includes a small caseload of special cases.

Example: Afro-Caribbean senior social worker required to lead a team of social workers. The team’s main task will be to provide services to adolescent boys and girls in care, or who have recently left care. The senior social worker will be required to manage the team, contribute to policy development, and carry a small caseload of adolescents with the most serious problems. A high proportion of young people in care are of Afro-Caribbean origin. Section 5(2)(d) of the Race Relations Act 1976 applies.

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Taking action against discriminatory advertisements

Under the Race Relations Act, both the advertiser and publisher of an unlawfully discriminatory advertisement are liable. Publishers may not be liable, however, if they can show that they reasonably relied on a statement by the advertiser that the advertisement was not unlawful (s 29(4)). Advertisers should be warned that they leave themselves open to prosecution if they make false or misleading statements.

Only the CRE can take legal proceedings against allegedly discriminatory advertisements. Complaints about particular advertisements should therefore be made to the CRE, or to a racial equality council (REC).

When the CRE receives a complaint about an advertisement, it takes the matter up with the advertiser and the publisher concerned and asks them to submit their comments, before deciding whether the advertisement is lawful or not. If the CRE thinks an advertisement may be unlawful, it can conduct a formal investigation, bring legal proceedings in an industrial tribunal or county court (Sheriff’s court in Scotland), or seek an assurance from the advertiser and the publisher that this will not happen again.

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How to avoid discriminatory advertisements: a checklist

Organisations and employers can avoid complaints about advertisements that make use of the section 5 exceptions to the Race Relations Act by taking a few simple precautions when drafting their advertisements.

• The CRE’s Code of Practice in employment gives advice on how to avoid discrimination. It also reminds employers that the methods they use to publicise job vacancies could have indirectly discriminatory effects.
• Check the job description very carefully and make sure that it is covered by section 5(2).
• Describe briefly the nature of the personal services you intend to provide.
• Explain why these services would be best provided by someone from the same racial group as the clients.
• Remember: all advertisements that discriminate on racial grounds are unlawful, so you must quote the section of the Race Relations Act that exempts you from this general prohibition.
• Make sure that the advertisement does not include the usual equal opportunities statement that all applicants are welcome regardless of racial origins, etc: plainly, not all racial groups will be acceptable.

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