Every once in a while, a challenging area of law is reflected by a particularly high-profile case. The most recent relevant example being the matter of Yorkshire County Cricket Club, whose mishandling of historic allegations of racism made by cricketer Azeem Rafiq is now the focus of a Digital, Culture, Media, and Sport select committee investigation.
Having downplayed events as "friendly and good-natured banter" that didn’t necessitate disciplinary action, the club now finds itself in the middle of a media storm – providing a stark warning, not just within the world of sport, but for all other industries too.
Although it’s an extremely complex and emotive problem, ignorance when it comes to racism is not an excuse. Here we delve a little deeper into how the law tackles racism at work, and what employers can do to become educated on the subject:
How is racism defined by the law?
Discrimination on the grounds of race was introduced into UK law by the Race Relations Act 1976 and now forms a key part of the Equality Act 2010. The Equality and Human Rights Commission (EHRC) offered guidance on the matter and drafted the code of practice contained within the Equality Act. Although this code isn’t legally binding, it does offer a framework for best practice, and employers who don’t follow the code will most likely be criticised by the courts.
The Equality Act 2010 details several types of discrimination as they apply to the nine protected characteristics (set out within the legislation), one of which is race:
- Direct discrimination - Being treated in a less favourable way than others because of their race – eg, a white person being paid more than a black person even if they are doing the same job.
- Indirect discrimination – If workplace policies do not reflect specific racial traits, eg, banning headwear worn for cultural reasons.
- Associative discrimination – If a person is treated less fairly because they spend time with people of a specific race.
- Perceptive discrimination – If a person is treated less fairly because they are believed to be of a certain race, even though they aren’t.
- Racial harassment - Infringing on a person’s dignity or creating an intimidating, hostile or humiliating environment, through targeting an individual’s racial characteristic(s)
The Health and Safety Executive states that employers have a duty of care to protect the physical and mental welfare of their employees, which can of course be damaged in cases of prolonged racial harassment.
If an employee’s mental wellbeing is impacted, and it can be linked to racial harassment or discrimination in the workplace, then the employer may be seen as being negligent. Furthermore, if that employee feels they have been forced to leave their job because of the situation, then the employer may find themselves subject to a claim for constructive dismissal.
How is racism impacting the workplace?
Data unearthed by Financial News shows that the number of race discrimination employment tribunals in the UK grew by 48% during 2020. This upward trend has been evident for some years – in 2017 there were 2,036 cases, in 2018 there were 2,948 cases and in 2019 a total of 2,464 were pursued. By 2020 this figure had risen to 3,641.
Seemingly playful or friendly exchanges between colleagues are a major catalyst for a large proportion of these claims. Implying that any racist remarks are just ‘banter’ can be incredibly dangerous. Regardless of intention, if a comment is made with racial undertones, it has the potential to cause distress. The law dictates that the focus in any claim should remain on the recipient of the comments, not the person who made them.
How can a business protect itself?
All business owners must have thorough inclusion and diversity, and grievance policies in place. These will ensure that businesses are better placed to defend themselves against any potential claims, purely because there was a framework to prevent such discriminatory activity. It should also enable the employer to commence disciplinary proceedings as and when demanded.
Policies need to include mechanisms that encourage people to come forward with any concerns about inequality, racism, or discrimination and should be regularly updated so that it is fit for purpose in dealing effectively with any complaints.
It is also advisable that a senior member of the management 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, and disciplining or dismissing those who are found to be in breach of these rules.
Providing thorough training designed to explain, in practical terms, exactly what is meant by racism in the workplace and terms such as ‘unconscious bias’ is always advisable, as it removes any question over what behavioural expectations are.
How should complaints be dealt with?
Complaints should be tackled in a way that reflects the desires of the complainant. They may simply ask for an apology, or ask the situation to be monitored. However, the urgency of the allegation may mean that a formal complaint and disciplinary processes be sought.
It’s advisable to follow a formal grievance procedure as this reflects the seriousness of the situation and guarantees that strict protocols for investigating the matter are adhered to. Employee Handbooks should cover grievance procedures as standard.
Steps to follow should involve providing support wherever available, from counselling through an employee assistance programme (EAP), to staff support networks, or, if required, access to external organisations which provide.
The failure to manage racism
Fundamentally, failure to prevent a culture in which racial discrimination and harassment can thrive could cause irreparable damage to a business. At a time when the social responsibility of brands or businesses plays an increasingly significant role in the commercial decision-making process, those acting carelessly or with negligence could take a substantial hit to the bottom line. It could also result in the loss of good staff, and cause untold reputational harm.
Racism in the workplace is not only morally outmoded but also mentally destructive. 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 constructive and respectful environment for all concerned.
About the author: Tina Chander is the Head of Employment Law at Midlands law firm, Wright Hassall, and deals with contentious and non-contentious employment law issues, acting for small businesses to large national and international corporates. She advises on a variety of employment law matters, including all aspects of employment tribunal proceedings and appeals.
About the firm: Wright Hassall is a top-ranked regional law firm, providing legal services including: corporate law; commercial law; litigation and dispute resolution; employment law, and property law. The firm also advises on contentious probate, business immigration, information governance, professional negligence, and private client matters.
