Many having a general interest in sport will be aware of the investigations into Azeem Rafiq’s allegations of institutional racism within Yorkshire County Cricket Club and the ongoing fallout. As an avid cricket fan, employment lawyer and an adviser to the Scottish Cricketers’ Association, these developments of particular interest to me, but I am sure they will have wide implications not only within sports organisations, but employers in all sectors. The fact that these allegations circulate around a professional sports’ body automatically attracts significant media attention, but the concerns raised apply equally to all work forces across the UK. So why is this important?
Encouragement to report – knowledge is key
Remember for conduct to amount to harassment, it needs to be because of a protected characteristic and it needs to create an intimidating, hostile, degrading, humiliating or offensive environment for the person. It is easy to see how a series of comments, jibes or phrases can quickly lead to an offensive atmosphere if not addressed early. And you can understand how such an atmosphere may prevent an athlete, or an employee, from flourishing. Is it fair that this should happen because of their ethnic origin or indeed any other protected characteristic such as gender or sexual orientation?
One of the biggest things holding back inclusivity is an under-reporting of incidents. Just because there have not been any reported instances doesn’t mean there isn’t a problem. There are a number of reasons why instances may not have been reported such as:
- an individual not knowing the appropriate forum to report,
- an individual not knowing if the matter is serious enough to report,
- an individual not being comfortable reporting matters to the requested person/body,
- an individual fearing repercussions on themselves,
- because the individual does not believe anything will happen.
What Rafiq has done, through no small effort, has ensured that he has finally had his voice heard. It is his resilience that refused to accept findings that the use of racist terms about his batting were “friendly and good-natured banter” which has long been shown to be an unacceptable defence to harassment. It is his determination that has now encouraged others to step forward and share their experiences when they would not have done so otherwise.
What this case and others over recent years should have taught employers and employees alike is that “banter” is simply not acceptable.
What can businesses learn from this?
Employers can take note that it is impossible for them to take action if they are unaware of the problem. They need to ensure that employees understand the kind of acts that amount to harassment, and that they feel comfortable reporting these acts. Rafiq’s complaints have opened up a communication channel, not just for him but several cricketers who have suffered similar behaviours. But did it need to take this long for these issues to come to light? What can businesses do to encourage employees who believe they have been racially harassed to come forward at an early a stage as possible?
Ideally there will be multiple ways of reporting incidents to improve the chances that there is a method of reporting that the individual feels comfortable using. These can include:
- reporting to their line manager,
- reporting to an equality champion,
- using external helplines,
- use of staff surveys,
- or reporting anonymously.
It needs to be made clear in policy and in practice that employees will not suffer as a result of raising a complaint, and that needs to be genuine. Anonymous reporting can also be useful for raising awareness, provided that the person reporting is aware that no investigation can likely follow unless they are willing to come forward.
Taking appropriate action – set the standard
It is only when decision makers within an organisation (board members, CEOs, HR personnel, managers etc) are aware of any acts of harassment that they can begin to understand and address any patterns of behaviour. It is only when these decision makers understand the issues, and the impact actions or inactions can have on their staff, that effective action can be taken. What the appropriate action is will depend entirely on the facts of the individual situation.
In a sporting environment where everyone’s primary objective is to win games of cricket, I suspect (and hope) that the players and coaches surrounding Rafiq did not intend to create the impact that their actions had on Rafiq. That is not a justification for their actions, but I am convinced that had Yorkshire taken matters seriously from the outset, and that the staff were made to realise the impact of their actions, then they would have changed their behavior towards Rafiq.
As time went on, matters obviously became more and more serious. If matters were properly addressed at an early stage, it means they can be nipped in the bud and people do not necessarily have to lose their jobs. Knowledge of harassment does however require action. This can take the form of education for those involved and a clear explanation of the type of behavior that will not be tolerated. Inaction suggests to the bystander that matters are not taken seriously, which in turn will discourage others to come forward.
On a human level, equality, diversity and inclusion within the workplace is hugely positive, but organisations are now realising it is now required on a commercial and reputational level too. Yorkshire’s handling of this process has cost them the opportunity to host international test matches until they can prove they have learned from their errors. Further they have lost significant commercial contracts in sponsorships. The time to act is now. If you want to learn more about creating an open and inclusive working environment within your business, then contact the Employment team on 03330 430350.
Insight from Andrew Wallace, Associate in Thorntons specialist Employment Law team. For more information contact Andrew or any member of the Employment team on 03330 430350.
