Tina Chander discusses the responsibilities for employers
The high-profile case involving Yorkshire Country Cricket Club and ex-player Azeem Rafiq dominated headlines at the end of 2021, as the club’s mismanagement of historical racism accusations led to an extensive select committee investigation.
Having originally downplayed the incidents as “friendly and good-natured banter” that didn’t warrant disciplinary action, the club found itself at the centre of a legal, financial and reputational storm – serving as a stark warning to businesses across other industries.
It goes without saying that racism must be kept out of the workplace at all costs, and failing to implement the necessary processes and policies, means your business runs the risk of allowing a toxic culture/environment to develop.
Pleading ignorance is no excuse when it comes to racism in the workplace, so it is important for employers to familiarise themselves with the laws surrounding the issue, whilst employees should educate themselves on the subject.
How is racism defined by the law?
The concept of discrimination on the grounds of race was first introduced into UK law by the Race Relations Act 1976 and now forms a part of the Equality Act 2010. Guidance on the issue is provided by the Equality and Human Rights Commission (EHRC) and a code of practice contained within the Equality Act. While this code is not legally binding, it offers a framework for good practice, and employers who don’t follow the code may be criticised by courts and tribunals.
The Equality Act 2010 describes several types of discrimination as they apply to the nine protected characteristics (which are set out within the legislation), one of which is race:
Direct discrimination – When a person is being treated less favourably than another because of their race – such as a black person being paid less than a white person doing the same job.
Indirect discrimination – When workplace procedures or policies put you at a disadvantage due to your race. An example would be banning certain hairstyles or headwear worn for religious or cultural reasons, disproportionally affecting people who are black/ Asian.
Associative discrimination – Treating an individual less fairly because they spend their time mixing with people of a specific race.
Perceptive discrimination – Treating someone less fairly because you believe them to be of a different race, even though they actually aren’t.
Racial harassment – Violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for them, through repeated disparaging comments or actions targeting an individual’s protected characteristic(s).
How can a business protect itself?
The goal should always be to create a workplace culture in which racist behaviour is less likely to occur, but also where complaints of such behaviour are treated seriously.
As such, it is critical that businesses have comprehensive inclusion and diversity, and grievance policies in place. These will ensure that businesses are much better placed to defend themselves against any claims of harassment or discrimination, on the basis that they had a set framework to prevent such activity from occurring.
Any such policy needs to be based on in-depth consultation with all employees and be truly reflective of the workforce. It should include the appropriate mechanisms which enable people to come forward and highlight any incidents of inequality, racism, or discrimination.
It is also advisable that a senior member of the management team be made actively responsible for diversity and inclusion in the workplace, and be accountable for communicating a strict zero-tolerance approach to any form of racial discrimination.
How should complaints be dealt with?
If a complaint is made, it needs to be handled in a manner that reflects the wishes of the complainant. In some cases, they may simply ask for an apology to be made or the situation to be monitored in the future. In others, the seriousness of the allegation might mean that a formal complaint needs to be made and disciplinary proceedings commenced.
Often, it is most pertinent to follow a formal grievance procedure as this demonstrates an acute understanding of the gravity of the situation and ensures strict protocols are met.
Steps will involve providing whatever support is available in-house – from counselling through an employee assistance programme (EAP), or, if needed, access to external organisations which provide support to victims.
On occasion, the employee may choose to report the matter to the police. If the situation becomes this serious then employers should take expert legal advice dealing with the rights of the complainant, those of the person against whom the complaint is being made and you as an employer.
The failure to manage racism
Failing to prevent a culture in which racial discrimination and harassment is seen as acceptable, and then compounding this failure by dealing with an incident that arises inadequately, could cause irreparable damage to your business.
In the first instance, it could lead to you losing valuable members of your team, followed by having to defend an employment tribunal claim. At its worst, a case of this kind could lead to massive reputational damage. In an era in which the social responsibility of brands is playing an increasingly large role in driving the decisions of consumers, this could result in a substantial hit to the bottom line. In other words, promoting inclusivity and protecting your employers is good for business at the same time as being overwhelmingly ethically correct.
Racism in the workplace is not only morally repugnant but also mentally corrosive for those involved. By holding anyone who participates in such reprehensible actions accountable, employers can safeguard not only the psychological wellbeing of their workers but ensure a more productive and respectful environment for all concerned.
Tina Chander is a partner at Wright Hassall.