In the second of two articles for Black History Month, my friend and colleague, Tony Adams reviews No Problem Here: Understanding Racism in Scotland (Luath, 2018) Neil Davidson, Minna Liinpaa, Maureen McBride and Satnam Virdee (eds.). This article originally appeared in The Scottish Left Review (Issue 106 July/August 2018).
Racism in Scotland is often relegated to the back burner. Even when the issue of racism is broached by anti-racists campaigners the stock responses they are met with is that ‘Things aren’t as bad as all that, you exaggerate; you’re indulging in special pleading or you must be paranoid’. Little wonder there is this widely held view both by politicians and academics that ‘there is no problem here’. Ethnic minorities are congratulated for integrating better and there is a welcoming attitude towards refugees and migrants.
Meanwhile research into the historical record and contemporary reality tells a different story. The racialized outsider faces discrimination in education, jobs, housing and at the hands of the police and criminal justice system. Racism in Scotland is, therefore, not a side issue and it is not peripheral either. It is central to the way things work. The question of racism in Scotland and the interplay, of race class, nationalism and other intersecting issues are very focal to this edited book. It brings together the views of academics, activists and anti-racism campaigners who argue that it is vital that the issue of racism be brought into public discourse.
In contrast to England, there has been relatively little public discussion about the historical or contemporaneous structuring power of racism in Scotland. ‘We wish to dig beneath the ‘race blind’ narrative that Scotland and its elites have crafted for many years, to perhaps unsettle them a little, so that we might begin to open up space for writing a historical sociology of racism in Scotland’ the book says. Its contributors ‘contend that the narrative of an absent racism in Scottish history and that the Scots are more egalitarian, more likely to place an emphasis on collectivism over individualism and on government intervention over self-reliance reinforces the myth that Scotland does not have a serious racism problem’. Instrumental to the consolidation of this powerful myth that ‘there is no problem here’ is that memorable Scottish phrase, ‘We’re a’ Jock Tamsin’s bairns’.
Such myth making has the effect of deflecting attention away from the disproportionate role that Scots actually played in the British Empire. It occludes any discussion of racisms in the country. Empire is central to the union. TheAct of Union, 1707, opened up English colonial markets to Scottish merchants and made it possible for Scots to play a role in the construction of the British Empire. But when we think of the British Empire our minds often drift to England rather than to Scotland. Yet Scotland was complicit in the slave trade and had colonies predating the joining of the union. It is significant to note here that slavery or the slave mode of production was central to early capital and racism became its justification. Thus racism has evolved entwined with capitalism over the last three centuries.
There is a level of amnesia that clouds the history of empire. Glasgow was the second city of the empire and, by the end of the Victorian era, Scots firms had attained a controlling position in key sectors of the economy of British India. Rather than sanitizing its past in order to re-imagine a post-union future, perhaps we need to look back at Scotland’s imperial history and connect it to a broader understanding of the British empire and Britain’s colonial past.
This perception that Scotland has less of a problem with racism than other areas of the UK is not borne out by the statistics either. In 2013-14 there were 4,807 racist incidents recorded by police in Scotland, the equivalent of 92 incidents a week without accounting for the many cases that go unreported. And lest we forget that there has been racist murders here many of which have still not been formally acknowledge as racist – Nuer Mohamed, Hector Smith, Shamsie Din Mohamed, Imran Khan, Sanjit Singh Choker and Sheku Bayoh to name a few. The growth of far right parties and the rise of Islamophobia across Europe and the US has to be challenged and driven back. Scotland is not immune from this.
The book explores the different modalities of racism in Scotland and the ways in which cultural racism has become central to the experiences of particular social groups. It also seeks to locate the contemporary debates on racialization and racism in their appropriate context in Scottish history. As the late historian E H Carr once put it: ‘There is no more significant pointer to the character of a society than the kind of history it writes or fails to write’. No Problem Here is a welcomed and important starting contribution that will invigorate the debate of what kind of Scotland we live in and what kind of Scotland we want it to be.
Tony Adams is a lecturer and EIS equality rep at City of Glasgow College. He has published in the Asian Times, Caribbean Times, Morning Star and Weekly Journal.
To mark Black History Month, my friend and colleague, Tony Adams recalls a forgotten chapter of the events around ‘Red Clydeside’ in 1919. This article was originally published in the Scottish Left Review.
The year, 1919, in Britain represents a high point in working class struggle and one un-matched since in its breadth and scale. Over 34m working days were not worked due to strikes compared to an average of 4.5m for each of the preceding four years. Two thousand soldiers, ordered to embark for France, instead mutinied and formed a Soldiers’ Union. Even the police force struck and demanded the right to unionise. Britain, it is said, was on the brink of a revolution. On 31 January that year a violent confrontation took place in Glasgow between the police and radical striking workers centred in and around the area around George Square. The workers were striking to demand a reduction of the working week from 54 hours to a 40 hour working week.
At a massive union rally in George Square on the day of the protest, the red flag was raised above 60,000 striking shipbuilding and engineering workers. Newspapers of the next day dubbed the demonstration which saw pitched battles between the police and strikers as ‘Black Friday’ or ‘Bloody Friday’. What began as a protest soon became a riot, with fighting across the city continuing throughout the night and 53 people were recorded injured. This dramatic incident and the leaders of the strike have been mythologised under the banner of ‘Red Clydeside’.
Meanwhile, a lesser known harbour race riot on Thursday 23, January 1919 in which black British colonial sailors were branded as unfair economic competitors by the national seamen’s unions and their local delegates, has been overlooked both in the personal and historical accounts of the general strike until more recently. The riot began in the yard of the mercantile marine office in James Watt Street where sailors gathered for their chance to be signed on to a ship. While waiting to see if they would be hired, competing groups of black and white sailors jostled and shouted insults at each other. This baiting descended into a pitched battle which spilled out of the yard onto the street. More than thirty black sailors fled the sailors’ yard pursued by a large crowd of white sailors. White locals joined the crowd which grew to several hundred strong. The rioters used guns, knives, batons and makeshift weapons including stones and bricks picked from the street. On being chased out of the hiring yard, the group of black sailors initially ran towards the nearby Glasgow sailor’s home on the corner of James Watt Street and Broomielaw Street. The white crowd smashed the windows of the sailor’s home and then invaded it. The two or three beat police officers in the harbour area were overwhelmed and an additional force of 50 police officers was called in. The large police force cleared the two set of rioters from the sailors home.
Though the staging of a general strike in Glasgow, its collapse following ‘Bloody Friday’ and the presence of tanks in the city centre the next day were far more eye-catching than the riot in the harbour a week earlier, the two events were explicitly inter-connected through the activities of the members of the leadership of the 40-hours strike movement. Emanuel Shinwell, leader of the Glasgow branch of the Seafarer’s was in addition, president of the Glasgow trades and labour council and chairman of the workers strike committee. Although a moderate, he advocated direct action in the most inflammatory terms in the days leading up to both the harbour riot and the mass protest of the 40-hours campaign. He and other strike leaders, such as William Gallacher, sought to encourage unskilled workers – including seamen – to take part in the sort of strike action that had been the province of the skilled workforce on wartime Clydeside. The two episodes ought to be viewed together as the harbour riot and the George Square demonstration occurred within a few days of each other. This proximity was much more than coincidental especially as the riot in Glasgow seaport, was soon followed by similar riots in South Shields, Salford, London, Hull, Liverpool, Newport, Cardiff and Barry.
It is important to note that the Glasgow harbour riot was the first instance of a spate of rioting focussed upon black residents in British ports which reached its height in June of that year. It was also part of the wider picture of industrial strife which has been simmering below the surface on Clydeside and other heavily industrialised regions throughout the war years and into 1919.
During these riots, crowds of white working class people targeted black workers, their families, black owned businesses and property. One of the chief sources of the violent confrontation in the run- down port areas was the ‘colour’ bar implemented by the sailors’ unions campaigning to keep black, Arab and Asian sailors off British ships in a time of increasing job competition. The imposition of a ‘colour bar’ on black workers at Glasgow and elsewhere around Britain’s seaports to protect white British sailors’ jobs illustrates the disregard for sections of the working class among many of those who considered themselves protectors of the organised workforce. Historically expressions of racist hostility have been tied to questions of employment. Hostility towards groups of fellow workers among trade unionists was nothing new. The opposition of white union members to the employment (in some cases) of cheaper overseas merchant sailors, violently demonstrated at Glasgow harbour, bears comparison to the wartime industrial action on Clydeside which aimed at preventing the ‘dilution’ of skilled with unskilled job losses and the permanent undercutting of ‘engineers’ wages.
The sea port riots of 1919 in which white crowds attacked black workers, their families and communities, have long presented a painful conundrum as they prefigure a century of conflict and harassment of people of colour in Britain. The causes of the riots are located in the interplay between on-going strikes, riots and other collective violence elsewhere in Britain and the Atlantic basin as well as the local context and meanings (including housing shortages and unemployment). In this light, the British riots appear less an isolated eruption ‘proving’ British racism, as they have often been portrayed. They were part of a broader political movement of resistance against post-war betrayals. This made the role of service and recently demobilised men a significant factor in the riots, one which was commented upon in many local press accounts of the violence. It is also clear that the specific grievances of the white sailors were not the only issues in the riots. The sense that the great sacrifices of the war years had been futile was being experienced at a national level as post-war shortages in housing and increased competition in the job market were the first results of mass demobilisation. Wider frustrations were being focused on the black community in Britain as a means of release. That the authorities in part recognised this is often apparent from the light sentences meted out to the white rioters in various centres around the country. However, there is also an element of racial antipathy revealed by the official response to the riots.
The fear of violence in the immediate post-war period became a worldwide phenomenon, and not without reason. The level of global unrest in the late 1918 and 1919 is also worth considering as it provides a wider context in which the race riots in Britain may be discussed. The Bolshevik revolution in Russia in 1918 provided governments worldwide with a spectre of the overthrow of the state in a situation of crisis. The attempted revolts of the Spartakist movement in Berlin, the establishments of soviets in Bavaria, Hungary and Czechoslovakia and the socialist revolt in Austria fuelled the worldwide fear of Bolshevism. It was not merely in the ‘defeated’ nations that unrest occurred for the politicising effect of war service and the strains placed on every day society by the war resulted in riots in the United States, the Caribbean, Africa as well as in Britain. As one of Scotland’s leading expert calls for a permanent fixture to remember the demonstration which took place on 31 January 1919, the black sailors of the Glasgow harbour riots deserve a place to be commemorated too because there is a single working class in Britain by historic right and present participation.
Tony Adams is a lecturer and EIS equality rep at City of Glasgow College. He has published in the Asian Times, Caribbean Times, Morning Star and Weekly Journal. Jacqueline Jenkinson’s ‘Black 1919 Riots, Racism and Resistance in Imperial Britain’ (Liverpool University Press, 2009) is the best available study of the issues.
When Black lives didn’t matter … that much – except perhaps merely as a commodity – is something that British society is having to confront in June 2020. Humans could be property to be bought and sold – quite legally.
Statutes of historical personages have been torn down or defaced in this country because of the death of George Floyd, an African American, in Minneapolis, USA. Unless you have been living in a vacuum, Mr Floyd died at the hands of a Minneapolis Police Officer on 25 May 2020.
Black Lives Matter
The protests that have kicked off around the world in the wake of the death of Mr Floyd have stirred memories of Britain’s murky past in the matter of race relations. It is not something at which this country can take pride.
Some readers may recognise the picture by JMW Turner at the top of this Blog, but if you don’t it relates to a particularly egregious and shocking incident in British legal history – but more about that later.
I’m thinking, in particular, about Britain’s role in the Trans-Atlantic Slave Trade. It may come as a surprise to many Britons that this country was an active participant in the mass enslavement and trafficking of our fellow human beings to the plantations, factories, mills and mines of the New World or the Americas.
It seems almost unthinkable today that such practices were allowed to flourish when we have strong laws in place prohibiting slavery (e.g. Article 4 of the European Convention on Human Rights as implemented by the Scotland and Human Rights Acts 1998).
Sir John Hawkins, Elizabethan Merchant Adventurer (1532-96)
Sir John Hawkins, the National Maritime Museum, London
As far back as 1562, Sir John Hawkins, cousin of the more famous Sir Francis Drake, had sailed to West Africa on trading voyage when he captured a Portuguese slave ship. After securing his human cargo, Hawkins then set sail for the Caribbean – then part of the Spanish Empire – to find buyers for his merchandise. Although England and Spain were in an effective state of war, the Spanish colonists were more than happy to do business with Hawkins.
And so began, the lucrative trade in human beings from the British perspective: Hawkins would carry out another two trading voyages to the Spanish Empire. On his third voyage (1567-69), he nearly came to grief when he tangled with a Spanish naval squadron at the Mexican harbour of San Juan de Ulúa (near Vera Cruz), narrowly escaping death. Many of his men were not so lucky, but that’s another story.
Although Hawkins was responsible for the enslavement and trafficking of hundreds of Africans – and by the way, the English Crown also got its cut from these enterprises – his activities were really minuscule when compared to what would come later.
An image of John Hawkins’ coat of arms (complete with the image of an enslaved African or a Moor- the name generally given to inhabitants of North Africa) can be seen below:
The coat of arms of Sir John Hawkins, part of whose wealth was derived from slave trading activities
The Asiento
British participation in the Trans-Atlantic Slave Trade would really hit its stride as a result of the Treaty of Utrecht 1713-1715 which ended the War of the Spanish Succession. Under the terms of the Treaty (Part X), the British gained possession of the naval fortress of Gibraltar and the Island of Menorca. More significantly and, from a purely profitable point of view, the British also took control of the Asiento for an initial period of 30 years.
The Asiento was the hugely lucrative contract or monopoly to supply Spain’s American Empire with African Slaves. Queen Anne (1702-14), the last Stewart monarch of the British and Irish Isles would hold a 22.5% stake in the company which administered the Asiento according to Hugh Thomas in his magisterial The Slave Trade: History of the Atlantic Slave Trade, 1440-1870 (Simon Schuster: 1997; First edition).
For nearly the next century, British vessels would carry millions of enslaved African (men, women and children) via the horrific Middle Passage to destinations in the Americas to be brutalised and exploited by their White masters.
By this time, of course, Scotland and England had entered into political Union in 1707 and this meant that Scottish merchants and financiers could take full advantage of what became known as the Triangular Trade. Ships would sail from British ports, laden with trade goods, heading for the coast of West Africa; they would pick up their human cargoes and take the Middle Passage to the Americas where the slaves were sold; then the return voyage could begin with the ships laden with tobacco, rum, cotton etc for sale in Britain.
Altogether it was a very profitable enterprise and vast wealth flowed into Britain.
Needless to say, the conditions which the slaves endured was horrific, with them being crammed into the holds of the ships for up to six weeks. Many slaves would not survive the passage, succumbing to disease and infection.
A depiction of conditions on a slave ship can be seen below:
A depiction of the horrifically overcrowded conditions endured by African Slaves on the slave ship, Brookes (1781)
The Zong Massacre
This is where JMW Turner’s picture (The Slave Ship) heaves into view. It is the depiction of a shocking event which involved the crew of a British ship called the Zong. In 1781, the Zong, which belonged to a Liverpool merchant syndicate, was carrying slaves from West Africa to the Americas. The lives of the slaves were insured, but not in the way that we think of modern life insurance: they were cargo or excess baggage; pure and simple. Slaves were goods or beasts of burden.
A depiction of the Massacre on the Zong
The Captain, Luke Collingwood, or another crew member had made what would turn out to be a fatal error (for some) in their navigational calculations and the Zong was way off course from Jamaica. With supplies of drinking water becoming evermore scarce, a fateful decision was made: a large number of slaves (over 130) would be thrown overboard in order to conserve supplies. Murder? Not quite … jettisoning excess baggage/livestock? This was an acceptable practice on slave ships and insurance had been developed to cover such eventualities.
The owners of the Zong would later attempt to recoup their losses by claiming under their policy of insurance. In the infamous case of Gregson v Gilbert [1783] English Reports 83, the syndicate would be forced to take legal action against the insurers who were refusing to pay compensation. Before anyone misunderstands matters here, this was purely a commercial question of liability for lost cargo, not human lives, certainly not a question of human rights.
At first instance, the court found for the syndicate owners and the insurers were ordered to pay compensation to cover the losses. On appeal, however, the syndicate would ultimately lose the case as Lord Justice Mansfield and his fellow judges would rule that the Captain and the crew had been negligent.
Lord Mansfield had been the judge in an earlier case – Somerset v Stewart (1772) 98 ER 499 – in which the issue of the freedom of an enslaved African, James Somerset was at stake. For abolitionists, this case represented a victory because Somerset was allowed to go free, but whether it represented a general proposition that English common law did not permit slavery within the territory of England has always been the subject of some debate.
Hardly a resounding victory for human rights, but this case would serve as a rallying call to arms for British anti-slavery activists, like the ex-slave, Olaudah Equiano (born in modern day Nigeria) and Granville Sharp.
Sharp later attempted to have crew members of the Zong charged with murder, but the Solicitor General for England, John Lee made a very telling statement:
“What is this claim that human people have been thrown overboard? This is a case of chattels or goods. Blacks are goods and property; it is madness to accuse these well-serving honourable men of murder… The case is the same as if wood had been thrown overboard.”
Insurers also covered losses (within limits) incurred by slavers who had to kill rebellious slaves while in transit. I well remember the late Professor Robert Burgess regaling the class with the tale of a failed rebellion where the owners of the ‘cargo’ successfully claimed from the insurers the value of the slaves who had been killed by their captors. The sting in the tale was that compensation was not payable for the slaves who had committed suicide following the failure of the rebellion. The policy did not cover such eventualities (see Jones v Schmoll (1785) 1 Term Rep 130n). A human tragedy reduced to an interpretation of the wording in an insurance document.
You can read more about insurance and slavery by accessing the link below:
From 1788 until 1833, the Westminster Parliament would pass legislation chipping away at the edifice of slavery in the British Empire. The practice of enslaving one’s fellow human beings would not be achieved overnight, but the road to eventual abolition would be under construction via the following statutes:
Regulated Slave Trade Act 1788 (or Dolben’s Act)
Abolition of the Slave Trade Act 1807
Slavery Abolition Act 1833
The Act of 1788 did not abolish the practice of slavery, but it laid down limits on the numbers of slaves that could be carried in accordance with the vessel’s tonnage. It was the first British Act of Parliament which attempted to curtail some of the worst practices of the Slave Trade.
More significantly, in 1807, the trade in slaves in the British Empire was abolished. Britain was not the first European country to do this – the Kingdom of Denmark had done so in 1792, although this law did not come into force until 1803. It is important to note that neither the Danes nor the British prohibited the ownership of slaves – this was still a perfectly legal practice.
Eventually, in 1833, the Westminster Parliament passed the law which would abolish slavery – eventually – as a legal practice in the territories of the British Empire. I say eventually because the institution of slavery would not be abolished at the stroke of the Royal Assent. Compensation for loss of property rights would have to be paid to slave owners (great and small) and there would be a transitional period (from 1838 until 1840) in which the slaves would migrate to their new legal status of freed men and women.
In total, it is estimated that the British Government established a fund of some £20 million (£16/17 billion in today’s values) which would be used to compensate soon to be former slave owners.
Ironically, the British would become ardent opponents of slavery throughout the world and they would use their considerable global influence to eradicate the trade and the institution whenever they could.
That is perhaps the problem which has contributed to a sense of collective amnesia amongst the British. Yes, considerable pride is taken when it comes to the abolition of slavery, but memories are extremely hazy when it comes to activities of British mercantile interests which made fortunes from the opportunities afforded by TheAsiento.
For more information about the background to the abolition of slavery in the British Empire, please find a link below to an article in The Guardian:
As the events of the last week have shown, reminders of Britain’s links to the Trans-Atlantic Slave Trade are everywhere: Edward Colston’s statute in Bristol; Henry Dundas’ statute in Edinburgh (who delayed the abolition of slavery by some 15 years); and Robert Milligan’s statute in East India Docks, London. Furthermore, British Street names reflect connections with prominent slave traders and their interests in the West Indies: Cochrane Street and Jamaica Street in Glasgow. The legacy of slavery is all around us, but for so long we have been wilfully blind or forgetful about this.
In 2020, it is difficult for us to appreciate how pervasive the institution of slavery was. It had been around since the earliest human communities and it still exists. Great scientists such as Sir Isaac Newton (1643-1727) invested heavily (and ultimately unwisely) in the infamous South Sea Company which traded in slaves (amongst other goods). From the British Royal family all the way down to ordinary individuals, investing in slavery could be a profitable financial activity.
Anti-Slavery International estimates that, today, there are more people (some 40 million individuals) living in conditions of modern slavery or unfree labour than there were when the Slavery Abolition Act 1833 was passed by Parliament.
If anything positive comes from the death of George Floyd, hopefully it will make us more aware of the fact that there was a time when Britain was not a beacon of civilised values and although Britannia undoubtedly ruled the waves, but many people could be slaves.
The title of this Blog refers to the not so distant past when discrimination was an accepted feature of life in the United Kingdom. In the 1950s and 1960s, these types of signs were routinely displayed in the windows of hotels, boarding houses and guest houses in the United Kingdom. They were blatantly racist, but completely legal.
It wasn’t just an unwillingness by White British landlords to rent rooms or properties to Afro-Caribbean and Asian families especially, ethnic minorities were often actively discouraged from purchasing properties in White neighbourhoods.
In 1968, Mahesh Upadhyaya, a young Asian immigrant to the UK, mounted legal challenge in respect of a refusal by a white British builder to sell him a house. It was the first time that anyone could do this. Mr Upadhyaya was able to do this because the Race Relations Act 1968 had just come into force. Although Mr Upadhyaya’s claim was ultimately dismissed on a technicality, the action generated a lot of publicity and greater awareness of the existence of anti-discrimination legislation amongst the British public.
A link can be found below which provides more information about Mr Upadhyaya’s story:
Even in the 1970s, you could still have a popular television sitcom called Love Thy Neighbour which dealt with the trials and tribulations of an Afro-Caribbean family moving into a white neighbourhood. If you watch it today, you can only cringe at the racist attitudes and name calling on display (see below) – you have been warned!:
This was the post-War period when Britain was suffering from acute shortages of labour and the solution adopted by successive Governments was to encourage immigration from former colonies such as Bangladesh, India, Pakistan, Sri Lanka and the British Caribbean islands.
Today, with the Equality Act 2010 firmly in place, it’s unthinkable that this type of blatant discrimination in housing could or would still take place. From time to time, however, stories are reported in the British media which highlight blatant racial discrimination in housing, but most people would now recognise that this type of behaviour is completely unlawful (see link below):
With this historical background, it was with some interest that I read recently about a number of legal actions (which had resulted in out of court settlements) where landlords had refused to let properties to certain individuals. These refusals had nothing to do with the racial backgrounds of prospective tenants, but the cases usefully demonstrate that letting properties can still be something of a legal minefield for landlords.
If the prohibition regarding Asian, Black and Irish people was an example of direct race discrimination (now in terms of Sections 9 and 13 of the Equality Act 2010), what about a prohibition which states ‘No DSS’ tenants? This term refers to individuals who are in receipt of State benefits such as Universal Credit whereby their rent is effectively paid by the Government.
At first you might be forgiven for thinking how such a prohibition could infringe equality laws, but dig a little deeper and think things over. The prohibition is a provision, criterion or practice (PCP) imposed by the landlord. Admittedly, people receiving State benefits are a hugely varied group: they will encompass men and women; White and Black and Minority Ethnic individuals; disabled and non-disabled people; heterosexual and LGBTI individuals; and people with religious/ philosophical beliefs and those with none.
This is to miss the point: could such a PCP be an example of indirect discrimination by reason of a protected characteristic in terms of Section 19 of the Equality Act 2010?
The answer seems to be yes: it would seem that more women than men are adversely affected by the prohibition ‘No DSS’ tenants. In other words, the prohibition is an example of indirect sex discrimination. Indirect discrimination can be understood in basic terms as hidden barriers which lead to unlawful, less favourable treatment.
Landlords may argue that they are not intentionally discriminating against women, but this is precisely the effect of their unwillingness to let properties to people receiving State benefits.
In 2017, the UK Supreme Court clarified the meaning of indirect discrimination in Essop v Home Office; Naeem v Secretary of State for Justice [2017] UKSC 27:
There is no obligation for a complainant with the protected characteristic to explain why the PCP puts her at a disadvantage when compared to other groups;
Indirect discrimination does not (unlike direct discrimination) have to demonstrate necessarily a causal link between the less favourable treatment and the protected characteristic. All that is required is a causal link between the PCP and the disadvantage suffered by the complainant and her group.
Statistical evidence can be used to demonstrate a disadvantage suffered by a group, but a statistical correlation is not of itself enough to establish a causal link between the PCP and the disadvantage suffered;
The PCP may not necessarily be unlawful of itself, but it and the disadvantage suffered must be ‘but for’ causes of the disadvantage. Put simply, if the PCP was not there, the complainant and her group would not suffer the detriment.
The PCP itself does not have to disadvantage every member of the complainant’s group e.g. some women may be able to comply with it, but , critically, more women than men cannot.
The pool of individuals to be scrutinised to assess the impact of the disadvantage should include everyone to which the PCP applies e.g. all those receiving State benefits whether they are negatively affected or not.
A link to the Supreme Court’s judgement can be found below:
It looks as if the phrase ‘No DSS’ may be consigned to the history books along with the more notorious example of ‘No Blacks, No dogs, No Irish’. Speaking of dogs: a general ban on these animals might constitute another example of indirect discrimination as individuals who are visually impaired (a disability) may be less likely to be able to comply as they rely on their guide dogs.
Links to stories about the legal challenges to the PCP of ‘No DSS’ tenants can be found below on the BBC News App:
It never ceases to amaze me that employers and service providers fall foul of arbitrary codes or policies which they impose on employees and service users. Regular readers of this Blog will be aware of previous articles covering discrimination or less favourable treatment which arises because employers or service providers issue generalised guidelines which discriminate against individuals because they happen to have certain hairstyles or wear beards or jewellery.
It is this lack of awareness that often leads to legal action in terms of the Equality Act 2010. By imposing a policy, criterion or practice (PCP) across the board, employers and other organisations could be setting themselves up for a fall specifically in relation to Section 19 of the Equality Act 2010. This part of the Act makes indirect discrimination unlawful i.e. it is an example of prohibited conduct by reason of a person or a group possessing a protected characteristic such as race or religion (Sections 9 and 10 respectively)
Since the introduction of the Race Relations Act 1976 (now repealed by the Equality Act 2010), we have seen a number of well known cases involving indirect discrimination being determined by Courts and Tribunals. So, you would think by now that employers and other organisations would have learned the lesson by now – apparently not as we shall see shortly.
In short order, such bans or generalised restrictions may infringe religious and cultural expression and may not only be a breach of the Equality Act, but could also represent a breach of human rights laws under the Human Rights Act 1998 and Article 9 of the European Convention on Human Rights.
Over the years, groups such as Jews, Muslims, Orthodox Christians, Sikhs and Rastafarians have brought successful legal actions for indirect discrimination on grounds of race and/or religion (see MandlavDowell–Lee [1982] UKHL 7). Being Jewish or Sikh can be both a religious and a racial identity.
Taking all of the above on board, I was really interested to read a story in The Independent this weekend which highlighted the problems of schools imposing dress codes on pupils. I thought: haven’t we been here before and why does no one seem to learn?
The story in question involves Ruby Williams who was “repeatedly sent home from Urswick School in Hackney, East London because she had Afro hair”. The school seems to have reacted with gross insensitivity to the youngster by informing her that her hairstyle was a breach of school uniform policy and that it could “block other pupils from seeing the whiteboard”.
Ruby and her family took legal action against the school (with the support of the Equality and Human Rights Commission) and she has since been awarded an out of court settlement of £8,500. The settlement figure clearly reflects the distress which she has suffered and the fact that all this trouble took place when she was studying for her GCSE exams (remember the Vento Guidelines anyone?). Ruby’s father is a Rastafarian and he has often stressed to his daughter the cultural, racial and religious significance of Afro hairstyles.
Apart from indirect discrimination which the school’s policy has caused to Ruby Williams, she may well also have had a claim in terms of Section 13 (direct discrimination) and Section 26 (harassment) of the Equality Act 2010 for being singled out in this way by the school authorities.
Perhaps the staff and Governors of the school might find it appropriate to undertake an equality awareness course at the next in-service day?
It is always open to an employer or service provider to show that although indirect discrimination has taken place, it can be objectively justified e.g. on national security grounds or health and safety reasons (e.g. Singh v Rowntree MacKintosh [1979] ICR 554 and Panesar v Nestle Co Ltd[1980] IRLR 64 CA).
Each attempt to justify a provision, criterion or policy (PCP) will, of course, turn on its facts and it would be very foolish for organisations to think that there is some sort of magic bullet or get out of jail card which can be used in every situation to justify or excuse conduct which would otherwise amount to unlawful discrimination. Organisations should review policies on a regular basis and, if need be, this may necessitate the carrying out of an equality impact assessment.
A link to the story on The Independent’s website can be found below:
“Great big girl’s blouse!” or “a girly swot”. Harmless insults; a bit of banter; or perhaps an example of sexist language? Deborah Haynes, a journalist with Sky News, certainly took the view that these remarks were sexist in nature – even though men were the targets (see the link below).
The first of these remarks was uttered allegedly by Prime Minister Boris Johnson MP in the House of Commons last week and directed towards the Leader of the Opposition, Jeremy Corbyn MP. The second remark was in a memo written by the Prime Minister in which he was critical of David Cameron (one of his predecessors).
Mr Johnson is well known for his colourful language in both print and in his speeches, but he was called out last week in the House of Commons by the Labour MP, Tammanjeet Singh Dhesi who accused him in very blunt terms of making racist remarks about Muslim women who chose to wear the Islamic form of dress known as the burka as an outward sign of their religious beliefs and cultural background.
Mr Tammanjeet drew on his own experiences as a Sikh and the kinds of derogatory remarks that he had to endure. His speech was received very warmly on the Opposition benches of the House of Commons.
On the other hand, Mr Johnson attempted a defence of his language by saying that he had merely spoken up in favour of the good old fashioned liberal value of freedom of speech. It was not an entirely convincing performance from the Prime Minister and far from his finest hour at the despatch box.
The Equality Act 2010 recognises various forms of prohibited conduct such as direct discrimination (Section 13) and harassment (Section 26). Sexist, sectarian and homophobic remarks may well be taken as examples of direct discrimination. A sustained campaign of bullying to which an individual (with a particular protected characteristic) is subjected may amount to harassment.
It will be sensible for employers particularly to spell out to employees what is acceptable (and what is not) in terms of the kinds of language or behaviour in the work-place. If employers do nothing to check discriminatory remarks such as racist or sexist insults, there is a real danger that they could be held vicariously liable.
Had Mr Johnson been a mere mortal, some of his remarks may have come back to haunt him. Employers are entitled to take disciplinary action against those employees who have committed acts of discrimination. After all, they are merely protecting their position by not leaving themselves open to the threat of legal action by the victims.
From the employee’s perspective, engaging in offensive language could give the employer the right to treat this type of behaviour as gross misconduct. It should be recalled that, in terms of Section 98 of the Employment Rights Act 1998, misconduct committed by an employee can be punished by dismissal and such a termination of the employment contract may be entirely reasonable in the circumstances.
In short, no one should have to work in a place where there is a hostile, degrading or intimidating environment. Racist or sexist remarks can be highly suggestive of such a working environment if permitted to go unchecked and unchallenged. Maybe in future the Prime Minister would do well to mind his language.
Links to articles about the Prime Minister’s colourful turn of phrase can be found below:
Ali G was (and still is) the memorable creation of the comedian, Sacha Baron Cohen. Ali G’s catchphrase was “Is it cos I is black?” and the comedian famously put this to a senior British police officer when he gatecrashed a political protest during a sketch for one of his TV shows on Channel 4.
Sacha Baron Cohen was making a very serious point when he wrote and planned such escapades: he was satirising the widespread racist sterotyping of Black and Minority Ethnic (BME) groups in the UK by their fellow White British citizens. When the character of Ali G first made appearances on Channel 4’s The 11 o’clock Show in 1999, it’s worth remembering that it was less than 6 years after the murder of the black teenager, Stephen Lawrence, in London.
Coincidentally, in 1999, Sir William Macpherson, a retired judge of the English High Court, had published his Report on the Stephen Lawrence murder and one of his most famous conclusions concerned the levels of “institutional racism” in the Metropolitan Police Service (paragraphs 4.45 – 6.63).
Several years ago, I attended an event for Black History Month and members of the panel were recounting their experiences of racism in the UK. Glasgow City Councillor, Graham Campbell told the story of his cousin who worked at Ford’s Dagenham car plant who constantly had his locker broken into and vandalised by his white, work colleagues. More often than not, his work tools were stolen from the locker. Eventually, this young man started to carry his tools to and from the Ford plant in order to avoid having to replace them. He was stopped and searched regularly by the same police officers who asked him each time if the tools were for burglaries. This was the kind of harassment that black people typically experienced in Britain of the 1970s.
Racial stereotyping which leads to people from certain ethnic groups suffering (unlawful) less favourable treatment is an example of direct discrimination in terms of Sections 9 and 13 of the Equality Act 2010. Repeated examples of harassment on grounds of race would also constitute breaches of Sections 9 and 26 of the Equality Act 2010.
So, it was with some interest that I read an article in The Independent on Saturday 15 June 2019 which recounted an incident which had taken place in Maidstone in Kent whereby a white police officer had assumed that a black man must be a criminal just because he happened to be in an area which was perceived to be ‘white’.
In England and Wales, you are much more likely to be stopped and searched by the police if you happen to come from the black community:
It doesn’t seem as if attitudes to race in certain sections of the police have moved on much from the 1970s.
A link to the story in The Independent can be found below:
Officer assumed black man was criminal in ‘white area’
The USA is still a very racially divided society in 2019, despite the fact that it elected Barack Obama, an African American to serve as 44th US President (2009-17). Despite this, we’ve seen the growth of the Black Lives Matter campaign in response to numerous instances of Police violence towards African Americans.
Colin Kaepernick, the former San Francisco 49ers American Football player caused controversy in August 2016 when he refused to stand for the US National Anthem as a protest against racism.
Civil Rights Leader, Martin Luther King Jr’s dream that his four little children would live in a nation where they would be judged not by the colour of their skin, but by the content of their character seems more remote than ever.
Teenage years can be a difficult experience for many young people. An interesting perspective on the teenage experiences of a young African American woman was recently published by the BBC.
This young person talked about not fitting in at a school where most of the pupils are overwhelmingly white. Feelings of exclusion and not being accepted by the majority (white student) population are reported:
This is what it means to be black: one African-American teenager’s experience, in her own words.
Postscript
Feelings of isolation are not just confined to African Americans. In a short film for the BBC, four young Black British men talk about their experiences of racism:
Seán Crossan's Scots Law 