Poor handling of discrimination complaints can severely damage an organisation’s reputation, as evidenced by the furore surrounding Yorkshire County Cricket Club. Oliver McCann discusses what HR can learn from the case and why firms need a solid complaints handling process to defend tribunal claims.
There has been uproar after institutional racism was uncovered at Yorkshire County Cricket Club (YCCC), dating back decades.
It came as Azeem Rafiq, the club’s youngest-ever captain and first of Asian origin, blew the whistle on more than 40 separate instances of alleged racial discrimination from coaches and former teammates. Since then, seven of the allegations have been upheld by an independent report commissioned by YCCC, and a number of ex-players came forward to share similar experiences.
As if the severity and quantity of the incidents weren’t serious enough, what has caused the greatest reputational damage has been the club’s poor handling of complaints on these issues. Not only did it fail to address complaints at the time they occurred, with the club’s former cultural diversity officer Tony Bowry claiming its board ignored complaints of racism – including Rafiq’s – but it reacted equally poorly upon receipt of an independent report into the matter.
Rather than take appropriate action, the club sought to downplay incidents as “inappropriate behaviour” and announced that not even one of its players, employers, or executives would be disciplined for their actions or inaction.
This lack of accountability, ownership and leadership has resulted in significant reputational damage that will have a lasting impact on YCCC for many years to come. In its wake, the club’s chief executive and chairman have resigned, sponsors have ended deals with the club, and it has been suspended from hosting international matches.
Equality and inclusion
Rafiq lodged an employment tribunal claim, but this was settled out of court in early November 2021. He reportedly received a six-figure pay-out and an apology from new club chair, Lord Patel.
What the Equality Act states
From an employer standpoint, there are countless lessons that can be learnt from this situation.
To start, as an organisation you should be reminded of the importance of the Equality Act 2010 (EQA), that sets out the legal framework to promote equal opportunities within an organisation. The EQA applies to any work relationship, in the provision of services and public functions, and in education. It sets out clearly that employers and principals are vicariously liable for the acts of their employees, agents and contractors, unless they can establish a reasonable steps defence.
There are different types of discrimination recognised under the EQA, which includes direct, indirect, harassment and victimisation. Rafiq cited three of these in his accusations, with harassment being at the heart of it. Dissimilar to other legislation, harassment under the EQA can be from a single event or incident and is defined as: “Unwanted conduct related to a relevant protected characteristic which has the purpose of effect of violating another’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.”
What this makes clear is that intent is irrelevant. It is the effect that actions have on an individual and it is for them to determine what is and what is not acceptable. The independent report found that the use of the word “P***” was disregarded as banter despite the word being widely accepted as offensive and racist, and it is illogical to conclude that Rafiq would have viewed it as a joke.
If someone is being discriminated against, it is vitally important to have a framework in place that allows the situation to be dealt with”
Importance of equality, diversity and inclusion
While there is a legal framework designed to protect individuals from discrimination and encourage organisations to promote equal opportunities, following its guidelines provides more than legal protection. The benefits of embracing a culture of equality, diversity and inclusion (EDI) are compelling.
Through an EDI culture, organisations will benefit from a greater diversity of knowledge, skills and background in their decision making. They will better reflect our multicultural society, thereby growing their potential customer base. This will create a more positive experience for employees and will help attract new talent.
If you’re committed to a culture of diversity and conclusion and adhering correctly to the EQA, in an ideal world the likelihood of complaints will be slim. However, if someone is being discriminated against, it is vitally important to have a framework in place that allows the situation to be dealt with. You must be able to identify and put a stop the behaviour, protect the victim from further discriminatory conduct, and investigate the matter with urgency.
When developing a framework, you must ensure there are clear policies in place for raising a complaint and give assurances that individuals will not be treated less favourably for doing so. Any complaint of discrimination should thereby be tackled on a formal basis and treated as a grievance.
Specifics of all allegations need to be logged with detail of where, when and what incidents occurred, who was involved and if there were any witnesses. This will lay the foundations for an independent investigating officer to uncover exactly what happened and produce a thorough report that sets out which allegations it has found to be substantiated and which it has not, with reasons. Conclusions will then need to be discussed with the complainant and they should be provided with an outcome in writing, detailing any actions or steps that need to be taken.
Taking proportionate action against perpetrators is key, as proven by what has unfolded at YCCC. If the person who made the complaint is not satisfied, the organisation may be forced to prove at an employment tribunal that there was no discrimination or that it has a reasonable steps defence, the latter requiring it to demonstrate that it has an EDI policy, which staff are inducted and trained on (with refresher training). It must also prove that the policy is adhered to, with action taken when breached. Failing to take complaints seriously and deal with them effectively, like YCCC, would result in the defence failing.
It is noted that YCCC settled Rafiq’s employment tribunal claim for an undisclosed sum, only three working days after it appointed Lord Patel as its new chair. Importantly, once appointed, Lord Patel has acted swiftly and dealt with the crisis head on. It is a shame such matters had to reach the level of publicity it did before Rafiq’s complaints were addressed and acknowledgements made that change needs to happen.