The Race Relations Act 1976 (Amendment) Regulations 2008, which amend the Race Relations Act 1976 to make clear that the definition of indirect race discrimination in S.1(1A) encompasses a 'deterred applicant', have been published. The Regulations, which come into force on the 22 December 2008, have been made in response to a Reasoned Opinion of the European Commission that the UK failed properly to transpose the definition of indirect discrimination contained in the Race Directive (No.2000/43) into domestic law.
Currently, in order to prove indirect race discrimination, a claimant must show that a provision, criterion or practice has been applied, which applies to all persons regardless of race, but (a) which puts or would puts persons of the claimant's race or ethnic or national origins at a particular disadvantage; (b) which puts the claimant at that disadvantage; and (c) which is not objectively justified - S.1(1A) RRA. The Regulations amend S.1(1A)(b) to make clear that indirect discrimination equally occurs where the claimant would be put at the particular disadvantage.
The amendment is intended to cover the position of the 'deterred applicant', i.e. a person who is put off applying for a job due to an implication that he or she will be discriminated against. It does not cover purely hypothetical situations, such as where an individual is not qualified to apply, or has no intention of applying, for the job in question. This is because there is a requirement to show disadvantage: if a person has no intention of applying for the job or is not otherwise qualified for the job, he or she would be unable to show that he or she has suffered a disadvantage.
The regulations can be viewed here.
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