On occasion, there will be a difficult area of law that is mirrored by the circumstances of a high-profile case in the media. The most recent example of this being with Yorkshire County Cricket Club, whose questionable handling of Azeem Rafiq’s allegations of racism is now the focus of an investigation by the Digital, Culture, Media, and Sport select committee.
By downplaying the accusations as “friendly and good-natured banter” that didn’t warrant disciplinary action, the club now faces reputational ruin – serving as a huge warning to others to not underestimate the importance of keeping racism out of the workplace.
It’s undoubtedly a thorny and highly emotive problem, but ignorance is no excuse. Here we look at how racism at work is judged by the law, and what and what can be done to protect employees from its impact:
How is racism defined by the law?
Race discrimination was first introduced into UK law by the Race Relations Act 1976 and forms part of the Equality Act 2010. The Equality and Human Rights Commission (EHRC) developed a code of practice for inclusion in the Equality Act, which, whilst none legally binding, does provide a behavioural framework for employers.
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].
- Indirect discrimination – When workplace policies put you at a disadvantage due to your race, such as banning certain hairstyles or headwear worn for religious or cultural reasons.
- Associative discrimination – Treating an individual less fairly because they spend their time mixing with people of another race.
- Perceptive discrimination – Treating someone less fairly because you believe them to be of a different race, even though they’re not.
- Racial harassment – Violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment by making repeated comments or actions aimed at an individual’s protected characteristic(s).
How is racism impacting the workplace?
Financial News reports that the number of employment tribunals in the UK dealing with race rose by 48% during 2020. It’s an upward trend that has been evident for many years; with 2,036 cases in 2017, increasing to 3,641 by 2020.
Playful verbal exchanges between colleagues are often a much-misunderstood catalyst for race discrimination claims. Suggesting that racist remark made in the workplace is purely ‘banter’ is a harmful assumption to make.
Regardless of intention, any comment with racial undertones will have the potential to cause distress. Not recognising this fact, failing to focus on the wellbeing of the recipient of the comments, or not taking effective action to halt any such activity could be extremely costly in the long term.
How can employers protect themselves?
It’s vital that employers adopt cohesive inclusion and diversity, and grievance policies as a deterrent for any harassment or discrimination.
These documents should highlight appropriate mechanisms for whistleblowing about any incidents of inequality, racism, or discrimination, clearly outline a strict zero-tolerance approach to any confirmed incidences, and define likely disciplinary procedures that can or will be taken against anyone found to be in breach of the rules.
Practical inclusivity training across all employees is also advisable, covering in practical terms exactly what is meant by terms such as ‘unconscious bias’, as it removes any question over what behavioural expectations are.
How should complaints be dealt with?
In some cases, the complainant may simply ask for an apology to be made or the situation to be monitored. In others, the gravity of the accusation might mean that a formal complaint needs to be lodged, or disciplinary proceedings commenced. It is often most pertinent to follow a formal grievance procedure as this ensures strict protocols are met in investigating the matter.
Where appropriate, additional support should also be offered to the complainant – from counselling through an employee assistance programme (EAP), or be given access to external organisations which provide support to victims of harassment, bullying, and discrimination.
The failure to manage racism
Failure to prevent a culture of racial discrimination and harassment has the potential to cause irreparable damage to a business. You can of course lose valued members of the team, and possibly face employment tribunals, but the sheer damage to a business’ reputation could also hit the bottom line hard.
Promoting inclusivity and protecting your employees is good for business at the same time as being overwhelmingly ethically correct. By holding anyone who participates in such inexcusable actions accountable, employers can safeguard not only the mental and emotional wellbeing of their workers but ensure a more harmonious working environment for all concerned.
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