By Jeya Thiruchelvam, employment law specialist at award winning Harding Evans Solicitors.

Football pundit Ron Atkinson recently found himself in hot water after making a racist remark about Chelsea’s black French Captain Marcel Desailly. His comment was broadcast live to the Middle East and following his subsequent resignation a fierce debate has been sparked.

After his resignation, the ex-Manchester United Manager issued a number of apologies. However public opinion on the subject remains polarised. Ian Wright went on record stating that he was ‘absolutely disgusted’ adding that the fact that Ron had removed his microphone prior to making the comment didn’t make it less offensive. At the other extreme fellow football pundit Jimmy Hill caused further controversy by claiming that one of the words in Ron’s comment was no more offensive or degrading than jokes about the size of his chin..!

In the field of employment law the number of employees pursuing race discrimination cases against their employers is on the increase. This trend, combined with the absence of an upper limit on the compensation which maybe awarded in such cases, means that employers need to be clued up if they are too avoid paying out thousands of pounds in compensation and face the adverse publicity of a race discrimination claim against them.

The law prohibits discrimination on the grounds of a person’s colour, race, ethnic origins or nationality/national origins. Whereas the first three grounds are self-explanatory the latter probably requires some explanation. A person’s nationality/national origins cover his/her geographic origin or legal nationality. Accordingly, a Scottish company refusing to hire an English worker on the grounds of his nationality constitutes race discrimination.

It is important for employers to understand that the law recognises two types of discrimination - direct and indirect discrimination. An employer will be guilty of direct discrimination if he treats an employee less favourably on the grounds of his race by for example, taking longer to conduct disciplinary investigations, dismissal, or indeed subjecting that employee to any other detriment.

An employer will be guilty of indirect discrimination if he imposes a requirement that a considerably smaller section of a particular racial group can comply with. For example, the requirement that job applicants have blue eyes since this will obviously discriminate against those of African or Indian descent. Similarly the requirement that job applicants are over six feet tall is likely to discriminate against smaller races/nationalities.

The crucial difference between direct and indirect discrimination is that there is no legal defence to direct discrimination. However, an employer may defend an act of indirect discrimination if it can be justified on objective grounds. For example, Nestle successfully defended a claim that they were guilty of indirect discrimination against a Sikh employee when they required him to remove his turban and wear protective headgear on the grounds of safety.

In addition the law provides that employers are liable for anything done by a person in the course of his/her employment irrespective of whether it was done with the employer’s knowledge or approval. The definition ‘in the course of employment’ is very wide and employers must be aware that they could be held liable for racist jokes made at the firm’s Christmas party or after work in the pub.

Employers may defend such claims on the grounds that they took all reasonable steps to prevent the employee from doing the act complained of. Such steps would include establishing an effective equal opportunities policy, with regular equal opportunities training for all staff and effective grievance/disciplinary procedures in relation to any complaints of race discrimination.

The law in this area has been subject to several changes over the last twelve months, the most significant of which is arguably the creation of a freestanding right not to be racially harassed.