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Sunday 19 November 2017
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How to avoid race discrimination claims

Prevention is better than cure – so what can you do to avoid race discrimination, and how can you handle any claims that you do receive? Joanna Alexiou explains

Prevention is better than cure – so what can you do to avoid race discrimination, and how can you handle any claims that you do receive? Joanna Alexiou explains

Race discrimination is unfortunately very prevalent in general practice. Colour, nationality, national origin and ethnic origin (which can sometimes include religion [1]) are the four different and often intertwining elements within the protected characteristic of race under the Equality Act 2010. There are four main types of race discrimination:

  • Direct discrimination – treating another person less favourably because of their race.
  • Indirect discrimination – applying a provision, criterion or practice (PCP) equally to a group of job applicants or employees that could place those of a particular race at a disadvantage. Though there is no statutory definition of what constitutes a PCP, it is likely to be the employer’s policies, rules and procedures. If an employer can show there is a legitimate aim and the PCP is proportionate to achieving that aim, its actions can be objectively justified. 
  • Harassment – unwanted conduct relating to race that has the effect or purpose of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. This can be intentional or unintentional and will usually be in the form of bullying, nicknames, jokes, banter or gossip.
  • Victimisation– when an employee is treated less favourably following an allegation of discrimination, as a result of giving evidence in a discrimination claim or raising a grievance. 

Since the Brexit vote, there has been a rapid increase in reported racist incidents in general practice, prompting Dr Cherie Wong from Network Locum, an online platform and community for locums, to commission a survey of 118 GPs.

Almost half (47%) said they have noticed more racism since Brexit and 63% said they had faced more racial abuse. The survey also revealed that white British doctors faced increased racial abuse. Some GPs said they no longer feel safe on home visits. The largest ethnic group of survey respondents were of South Asian origin (42%) followed by white English (22%).

Racism from patients was mostly direct verbal abuse and more covert incidents such as asking their GP’s ethnic origin and then changing their designated doctor the next day. Gilles De Wildt et al state that doctors facing racial abuse should be actively supported, as ‘to do otherwise is to allow the dignity and rights of our colleagues to be eroded’.[2]

Impact on care

Race discrimination negatively affects patient experience and care, decreases the morale and wellbeing of the staff who work so hard to provide quality care to patients and violates their human rights and dignity. It is inherently wrong and should never be tolerated. 

This increase in race discrimination brings with it an urgent need for practice managers to focus their efforts and resources on preventing these incidents and claims. The following two-step process is recommended:

  • Awareness and understanding of what race discrimination is and the key areas of work, such as recruitment and disciplinary procedures, where it is likely to occur. When advertising for job vacancies, it is important to ensure that the job descriptions and person specifications focus on the skills and knowledge, experience and qualifications of the person. It is also important to avoid advertising only in one kind of place or medium.

If English is essential for a job, it is advisable to advertise for fluency in English rather than English as the candidate’s first language. It was common practice in the 1970s for GPs to state that only British graduates should apply. This decreased in 1976 with the introduction of the Race Relations Act, but unfortunately, it still happens. When drafting employment contracts, it is vital to ensure that none of these terms disadvantage, even if subtly, people of a particular race – eg clauses regarding annual leave that could be indirectly discriminatory to people of a certain ethnic origin. 

  • Development and implementation of robust policies and procedures such as equality, disciplinary and bullying and harassment policies. These policies and procedures should match the size and resources of the specific practice. Employees should be consulted in the drafting of the equality policy.

As a minimum, this should include a commitment to provide equality for all staff and job applicants, a statement recognising the benefits of a diverse workforce, a zero-tolerance policy on discrimination, victimisation, bullying and harassment and a statement that breach of this will lead to a disciplinary hearing and potential dismissal.

Common forms of race discrimination

Some of the most common forms of race discrimination include jokes, banter and invasive questions, which many people may not realise are unlawful. It is therefore vital for the practice disciplinary policy to include a non-exhaustive list of what behaviour is unacceptable so that all employees and management are aware of what behaviour could fall foul of race discrimination and open them, and potentially, the organisation as the employer, to costly race discrimination claims.

The practice should also have a grievance policy stating clearly how employees can raise any concerns of race discrimination and who they can raise these with, stressing the importance of confidentiality.

The mere existence of these policies is not enough to prevent race discrimination claims, as they will be meaningless unless they are enforced. Providing equality and diversity training is essential and this should be kept up to date with changes in the law and composition of the workforce. It should also be supported from the top of the practice management.

The acceptability or unacceptability of terms that are used to refer to someone’s race, colour, nationality or ethnic or national origin can change over time, and sometimes quite quickly – so regular training is very important.

It is also helpful for the practice to provide employees with written summaries of key points from the training to refer to if they find themselves in the middle of race discrimination incidents.

Open discussions

Understanding individual experiences and ways of dealing with racial abuse is crucial. Roger Kline, a trustee of Patients First, has stressed the importance of creating a safe space for discussion, but not for tolerating racism. This would enable difficult issues and troubling questions to be raised in a way that would challenge prejudice effectively.

He has also warned against tick-box approaches only focussing on training and policies. GPs should have a dedicated member of staff, working with unions and staff networks and take advice from NHS Protect if necessary.[3]

As stated earlier, race discrimination can be seen in several aspects of the employment relationship. In a recent group of about 20 aspirant GP trainers in an area including the Midlands – the second largest metropolis for ethnic minorities – not one was from a minority ethnic group.

The British Association of Physicians of Indian Origin (BAPIO) challenged the lawfulness of the clinical skills assessment (CSA) by the Royal College of General Practitioners (RCGP) as assessor and the General Medical Council (GMC)as regulator.

This culminated in a judicial review at the High Court, which heard that out of 133 candidates who failed the CSA between 2007 and 2012, 120 were foreign graduates.

Though the judge found that the CSA did disadvantage ethnic minorities, he said it was a proportionate way of achieving a legitimate aim. He stated that BAPIO had won ‘if not a legal victory, then a moral success’ as the RCGP needed to act and identify means ‘to eliminate discrimination’.[6]

When BAPIO brought legal proceedings, Professor Aneez Esmail and Chris Roberts analysed pass rates for over 6,000 candidates who took the CSA between 2010 and 2012. They found that UK graduates from black and minority ethnic (BME) backgrounds were nearly four times more likely to fail the CSA than white UK graduates. 

When he reported his results in the BMJ, Professor Esmail stated he ‘could not exclude racial bias from his findings.[7] Despite almost a third of the GP workforce being qualified overseas, many international medical graduates get less recognition and slower promotion than people from the UK.

A GMC report in 2014 showed that complaints against UK-trained BME GPs were 17% more likely to be investigated than UK-trained white GPs and complaints were 25% more likely to lead to a sanction or warning. 

The report covered over 25,000 complaints and 10,000 investigations between 2010 and 2013.[8] Though the situation has slightly improved in the last couple of years, levels of complaints and sanctions against BME GPs are still higher than others.[9]

Loss of reputation

It is not only GPs who face racial abuse, but all staff in the practice, including receptionists and cleaners. Statements made by staff to other staff that management aren’t even aware of could lead to litigation.

In 2010, a French porter was nicknamed ‘Inspector Clouseau’ by other employees and a manager. A tribunal concluded that Inspector Clouseau was a ‘British comic creation of stereotypically bubbly French character’ and that it was reasonable for Mr Basile, who had a distinct French accent, to find this humiliating.[10] Not only would a finding like this be a stain on the practice’s reputation, it would also be a burden on their already scarce finances.

Practice managers should actively support and encourage all staff to report race discrimination incidents and should handle these situations fairly, sensitively and confidentially. They should make it clear that nobody will face adverse consequences or treatment after reporting race discrimination incidents. 

The employer can either handle the complaint informally or formally, depending on the nature of the complaint, its seriousness, the possible action that may need to be taken or the outcome sought by the complainant.

If the employer becomes aware that someone is being subjected to race discrimination, it must ensure that it takes action before the incident turns into a complaint or a grievance.

This is important for two reasons:  the sooner the action is taken, the easier it can be resolved with less chance of a tribunal claim; it is less likely that the employer would be liable for the discriminatory actions of the employee(s) involved.

The practice, as an employer, can be found to be vicariously liable for its employees’ discriminatory behaviour if it happens during the course of their employment unless it can show it took all reasonable steps to prevent this behaviour. When managing race discrimination incidents, practice managers may decide that the best approach is to have a quiet word with the employee, who may not have realised their behaviour caused offence.

While this is cheaper and likely to resolve the matter faster, it can be risky as the employer could be accused of not taking the complaint seriously enough and could be vicariously liable.

If the incident is serious, the employer must take the formal approach. You should consult with an HR manager (if you have one) or lawyer and carry out a thorough investigation if needed. If the investigation substantiates the allegation(s), a disciplinary hearing and appropriate sanction should follow.

Where possible, the investigating officer should be neutral, not involved in the complaint and not involved in any further part of the process. Smaller employers may find this a challenge and tribunals will consider the size and resources when assessing the reasonableness of the investigation. The employer should always ensure its approach to managing race discrimination is consistent.

Once a race discrimination claim is resolved, the GP should consider how to prevent a similar issue from recurring; observe the situation to ensure the discrimination has stopped; and ensure that the employee has not been victimised. The employer should also provide further equality training and review the equality policy to check whether changes are needed.

Investing time, resources and manpower in the prevention of race discrimination via training, policies and promoting a zero tolerance culture is essential. If incidents and claims do arise, the employer must act quickly, sensitively and fairly to resolve them. The more that a practice’s personnel experience race discrimination, the lower their morale and well-being will be, which will affect the standard of clinical care and patient satisfaction.

Joanna Alexiou is senior associate solicitor at Johns & Saggar LLP

References

1 Mandla v Dowell-Lee. United Kingdom House of Lords Decisions. 1983 UKHL 7

2 De Wildt G, Gill P, Chudley S et al. Racism and General Practice – time to grasp the nettle. Br J Gen Pract2003;53:181.

3 Kline R. Racism in the NHS: Don’t let the unspeakable become acceptable. Open Democracy, Our NHS2016

4The Queen on the Application of Bapio Action v RCGP and GMC. EWHC 1416 2014

5Esmail A. Academic performance of ethnic minority candidates and discrimination BMJ2013;347:f5662

6GMC Fourth Annual State of Medical Education and Practice Report 2015

7GMC Sixth Annual State of Medical Education and Practice Report 2016

8BAPIO. Basile v RCGP and others. ET 2204/568/10