Customers’ preferences unlikely to justify discrimination
It was recently reported that the Equality and Human Rights Commission (EHRC) is looking at a Rochdale based taxi firm that has offered customers the opportunity to choose white drivers, as opposed to those of Pakistani origin. This comes in the wake of the widely publicised Rochdale cases where men of Pakistani origin were convicted of various offences relating to the sexual exploitation of young girls. The grooming of young girls in the neighbourhood has previously been associated with taxi drivers, and the owner of the taxi firm has said that he is often asked by customers to provide white drivers even though most of his drivers are of Pakistani origin.
The question is, is this employer’s response to customer demands legal?
Employment status
Discrimination laws fall under the Equality Act and different laws apply to self-employed workers and employees, and so it is important to understand which laws apply. It is common for mini cab drivers to be self-employed, although in some instances their employment status is not that clear cut and will be determined by a number of factors – the basic premise being that if it looks and sounds like an employment relationship it most probably is.
Third parties
It is straightforward enough for employers to understand that any disparity of treatment in employment on the grounds of race is unlawful. However, when the disparity of treatment is customer-driven, the situation is much more complex. There used to be a provision in the legislation that placed liability on employers for harassment of their employees by customers or other third parties but this has been repealed and so no longer applies. In any case, the Rochdale taxi company has reportedly been pro-active in offering clients the option of a white driver, rather than responding to their requests.
Indirect discrimination
An employer who proactively offers customers a choice when it comes to the race of the person they wish to deliver a service is likely to fall foul of the Equality Act on the grounds of indirect race discrimination. The employer would, in effect, be applying a practice that disadvantaged a particular ethnic group compared to others. There are some instances where it will be an ‘occupational requirement’ for an employee to be of a certain race. But this will not apply to the taxi company as the reason for the preference for white drivers is the assumption that all drivers of Pakistani origin are guilty, solely because they share the same race as the convicted perpetrators of the crimes in Rochdale. As a small business, the taxi company is likely to justify its actions by referring to commercial need. In other words, the firm is likely to say that if it does not provide customers with white drivers, it will lose their business. However, all this does is express the belief that it is acceptable to show racial bias against some drivers just because they share the same race as those convicted.
Investigation
The EHRC has powers to investigate and produce a report that includes recommendations. If a breach of the Equality Act is found to have occurred and is ongoing, the equalities watchdog can then issue an enforcement notice to stop the practice. In most cases the situation ends there - with the employer complying with the notice.
Vanessa James is partner and head of the employment and immigration department at SA Law.
For more employment law articles, visit HR-inform For more on this area of law, go to race discrimination