Race is identified as protected characteristic by Section 4 of the Equality Act which defines race as including “colour”, “nationality” and “ethnic or national origins”. A “racial group” is a “group of persons defined by a reference to race”.
Therefore it is clear that identifying a “race” to a particular job or role can amount to discrimination on racial grounds. In the case of job advertisements, it is unlawful to publish or cause to be published an advertisement which invited applications for a job or role which may be determined by reference to race, subject to the genuine occupational qualification defence (see more below).
As regards the engagement of an individual, the Equality Act states as follows:-
“An employer (A) must not discriminate a person (B) –
(a) in the arrangements (A) makes for deciding to whom to offer employment,
(b) as to the terms on which (A) offers (B) employment.
(c) by not offering (B) employment”.
So, what this means is that positive discrimination of the sort which might lead to a English or British appointment as England manager would amount to discrimination.
Can the selection be justified? Broadly speaking, it can.
If an employer can show that the appointment was based upon a genuine requirement or qualification for a particular job, the employer may have a defence to race discrimination.
However, it should be noted that this defence is not a licence to discriminate. The first, the exception for genuine occupational requirement applies where the discrimination relates to a determination by the employer as to who to offer employment, a refusal to offer employment or dismissal.
This exception applies where it is shown that “being of a particular race or of a particular ethnic or national origins “is a genuine and determining occupational requirement” and that it would be proportionate to apply that requirement to the particular case under consideration.
The second exception which is known as the genuine occupational qualification is only available where the discrimination takes the form of discrimination in the arrangements made for the purposes of determining who should be offered employment or not whichever the case may be and is subject to a number of strictly defined circumstances, none of which can be said to apply to the manager’s job.
Bellamy is a solicitor who specialises in Litigation and Employment at City law firm Saunders Law Limited. He has extensive experience of a number of areas of litigation and heads the employment and AAP team. He is a member of the Police Actions Lawyers Group, Employment Lawyers Association, London Litigation Solicitors Association and the Association of Personal Injury Lawyers.