Racism at cricket club highlights the importance of an inclusive culture for employers

In September 2020, Mr. Rafiq revealed in an interview how he experienced racism, harassment and bullying during his time playing for YCCC. The matter had been initially raised in 2018 but not dealt with as the comments made were considered “banter”. This interview led to the club launching an independent investigation into 43 allegations of racist behaviour made by Mr Rafiq. In December 2020 Mr Rafiq brought an employment tribunal claim against YCCC.

The investigation was concluded in August 2021, and though findings have not yet been made public in their entirety, in late October 2021, YCCC issued a summary of the findings admitting that Mr Rafiq had indeed been the victim of racial harassment and bullying.

Various former YCCC cricketers have come forward in support of Mr Rafiq, for example, one player alleged that “systemic taunting” was prevalent at the club, and former academy players complained of treatment that included incidents where players urinated on a Muslim player’s head, desecrated another’s prayer mat, and used racist language aimed at players’ Pakistani heritage.

Mr Rafiq appeared before a Digital Culture Media and Support select committee on 16 November to provide more detail on the allegations made and the impact that the culture at YCCC had on himself and other players who were the victims of abuse.

The incoming YCCC chairman, Lord Patel, gave a clear apology to Mr Rafiq, praised his bravery in coming forward and encouraged others to speak up if they are or were ever in a similar position. Lord Patel also facilitated the settlement of Mr Rafiq’s employment tribunal claim, unusually without any restrictions on confidentiality to allow him to speak about his experiences publicly.

As race and religion are protected characteristics under the Equality Act 2010, the complaints made by Mr Rafiq and his teammates give rise to various breaches of this legislation. These include:

Direct discrimination – Direct discrimination is when someone is treated less favourably because of a protected characteristic. The use of racist language or singling someone out because of their race and/or religion is a clear example of direct discrimination.

Harassment – Unwanted conduct related to race or religion that has the purpose or effect of violating a person’s dignity or creating a hostile, degrading, humiliating or offensive environment would amount to unlawful harassment. The taunting and use of racist slurs, along with the other incidents reported by Mr Rafiq’s teammates, would amount to harassment.

Victimisation – If a player was subjected to a detriment due to having raised an allegation of discrimination, then this would amount to victimisation. If Mr Rafiq raising his concerns had been used against him in any way, then it is likely that he would also have a claim for victimisation.

In this case, the original labelling of the allegations as “banter”, whilst troubling, is a trap that employers can often fall into. The context in which the alleged conduct occurred can be relevant and must be considered. For example, if everyone in the dressing room joins in and enjoys such banter using equally offensive terminology towards one another, that can have an impact on the strength of the complainant’s claim, however, the evidence provided by Mr Rafiq shows that this was not the case. Lord Patel stated explicitly that “racism or discrimination in any form is not banter.”

Where a successful discrimination claim is brought, it can result in an award for injury to feelings, as well as for compensation for losses stemming from the discrimination. It is important to bear in mind that these awards are uncapped and therefore can be extremely costly to employers if proven.

Whilst it is possible for a claimant to bring proceedings against the individual who they allege was responsible for the discriminatory conduct, it is more usual for the claims to be brought against the employer as well, given that they are more likely to have the means to pay out any award made. It is, therefore, extremely important for employers to have clear bullying and harassment and equal opportunities policies in place that set out what is and is not acceptable conduct. These should be well publicised and disseminated to staff through regular training and enforcement, as this would be the first line of defence to any claim brought.