Tina Chander, Head of Employment Law at Wright Hassall, encourages business owners to become better educated with regards to their obligations when it comes to ensuring racial equality in the workplace.

 

Every once in a while, a difficult and complex area of law is crystallised by the circumstances of a particular high-profile case. The most recent example of this being the matter of Yorkshire County Cricket Club, whose mismanagement of historical allegations of racism made by cricketer Azeem Rafiq is now the subject of a Digital, Culture, Media, and Sport select committee investigation.

Having downplayed the incidents as “friendly and good-natured banter” that didn’t warrant disciplinary action, the club now finds itself at the centre of a legal, financial and reputational storm – serving as a stark warning, not just in the world of sport, but across all other industries too.

Keeping racism out of the workplace is a moral imperative. Having the right systems, processes and policies in place should ensure incidents of this kind are unlikely to happen. And if they do, that they will be dealt with in a way that protects your employees as individuals and your business as a whole.

There is no doubt that it’s a complex and emotive problem, but ignorance is no excuse. Here we take a closer look at how the law views racism at work and what employers can do to better 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. Employers who don’t follow the code may be criticised by courts and tribunals.

One key to preventing and dealing with discrimination of this kind involves understanding exactly what discrimination involves. 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 – i.e. 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 is racism impacting the workplace?

Data uncovered by a Freedom of Information request put in by Financial News showed that the number of employment tribunals dealing with race discrimination claims in the UK rose by 48% during 2020. The upward trend has, however, been apparent for some years now. 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.

Workplace high-jinx or playful and friendly exchanges between colleagues is often a much misunderstood and overlooked catalyst for race discrimination claims, as seems to be the case with Yorkshire County Cricket Club.

Suggesting that racist remark made in the workplace is simply ‘banter’ is a dangerous assumption to make. Although the difference between racism and perceived banter can be marginal, the focus should always remain on the recipient of the comments, not the person who made the remark.

Regardless of intention, if a comment is made with racial undertones it will have the potential to cause distress. Believing something to be funny or non-malicious is not an excuse, and berating someone’s negative response to it dismisses their personal experiences and further marginalises them.

Not recognising this fact, or failing to manage such potentially damaging repartee effectively, could be extremely costly in the long term.

How can a business protect itself?

The goal, of course, 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, investigated in-depth and dealt with appropriately.

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. But also, it will empower the employer to commence with disciplinary proceedings as and when necessary.

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, and should be regularly monitored and evaluated in operation to prove that it is fit for purpose in dealing effectively, and swiftly, with any complaints which are made.

It is also advisable that a senior member of the management be made actively responsible for diversity and inclusion in the workplace. They should 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?

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. This demonstrates an acute understanding of the gravity of the situation and ensures strict protocols are met in investigating the matter and taking any necessary action. If your Employee Handbook has been put together effectively then it should include details of the procedure which is to be followed when a complaint of this kind is made.

Steps will involve providing whatever support is available in-house – from counselling through an employee assistance programme (EAP), through to staff support networks. Or, if needed, access to external organisations which provide support to victims of harassment, bullying and discrimination.

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. Even if the case eventually goes to court and the complainant loses, employers may still be in a position to take disciplinary action as the level of proof needed for this will be lower than that required by a court.

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 redundant 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.