Legal

What employers should consider when handling racism allegations

22 Nov 2021 By Oliver McCann

Oliver McCann examines the lessons that can be learned from Yorkshire County Cricket Club’s poor handling of racial discrimination claims

Over the past few weeks there has been uproar after institutional racism was uncovered at Yorkshire County Cricket Club (YCCC), which dated back several decades. It comes as Azeem Rafiq, the club’s youngest-ever captain and first of Asian origin, blew the whistle on over 40 separate instances of alleged racial discrimination from coaches and former team mates.

As if the severity and quantity of the incidents weren’t serious enough, what has caused the greatest reputational damage has been the club’s poor handling of complaints on these issues. Not only did it fail to address complaints at the time they occurred, but it reacted equally poorly upon receipt of an independent report into the matter. 

Rather than take appropriate action, the club sought to downplay incidents as ‘inappropriate behaviour’ and announced that not even one of its players, employers, or executives would be disciplined for their actions or inaction. 

This lack of accountability, ownership and leadership has resulted in significant reputational damage that will have a lasting impact on YCCC for many years to come and from an employer standpoint, there are countless lessons that can be learned from this situation.

Importance of equality, diversity and inclusion (EDI)

To start, as an employer you should be reminded of the importance of the Equality Act 2010, which sets out the legal framework to promote equal opportunities within an organisation. It sets out clearly that employers are vicariously liable for the acts of their employees, agents and contractors, unless they can establish a ‘reasonable steps’ defence. Disregarding racially charged incidents as ‘banter’ is an unacceptable conclusion, as demonstrated clearly by what has happened in this situation.

While there is a legal framework designed to protect individuals from discrimination and encourage equal opportunities – that must be adhered to – following its principles has far wider benefits than legal protection. Embracing a culture of EDI will provide greater diversity of knowledge, skills and background, better reflecting our multicultural society and therefore creating a more positive experience within the organisation. 

Handling complaints

If you are committed to a culture of diversity and conclusion and adhering correctly to the legislation, in an ideal world the likelihood of complaints will be slim. However, if someone is being discriminated against, it is vitally important to have the framework in place that allows for the situation to be dealt with. You must be able to identify and put a stop to the behaviour, protect the victim from further conduct and investigate the matter with urgency.

Having this framework in place will allow for an individual to raise a complaint, without fear of being treated less favourably for doing so, and that they will be taken seriously. Once received, full details of the reported incident(s) will need to be logged in detail, including where, when and what occurred, as well as who was involved or present. 

These foundations will then allow an independent investigating officer to begin to uncover what has occurred, produce a thorough investigation report and set out which allegations it has found substantiated and which it has not, with reasons.

Following this, proportionate action against perpetrators is critical. If the person who made the complaint is not satisfied, the organisation may be forced to prove at an employment tribunal that there was no discrimination or that it has a ‘reasonable steps’ defence. In the latter event, it will have to demonstrate that it has an EDI policy, staff are inducted and have had refresher training on it, policy is adhered to and, most importantly, action is taken when it is breached. 

Case in point, Azeem Rafiq’s employment tribunal claim has now settled for an undisclosed six-figure sum, only three working days after it appointed a new chairman – Lord Patel. It is a shame such matters had to reach the level of publicity it did before Azeem’s complaints were addressed and acknowledgements made that change needs to happen. Following these events, all employers should be reminded of the importance of an effective EDI strategy, where allegations are taken seriously.

Oliver McCann is an employment & HR partner at Napthens solicitors

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