Last year, Azeem Rafiq accused Yorkshire County Cricket Club (YCCC) of racism, saying
When experiencing race harassment at work, employees may be able to bring a claim to the Employment Tribunal. Within The Equality Act 2010 (EqA), race is a protected characteristic and this key piece of legislation provides protection to employees who are experiencing harassment on grounds of race. Other protected characteristics include;
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual orientation
What does the EqA say?
To gain a better understanding of how harassment is made unlawful in the workplace, it is beneficial to read the piece of legislation that protects against harassment. Section 26 of The Equality Act 2010 is as follows;
(1) A person (A) harasses another (B) if—
(a) A engages in unwanted conduct related to a relevant protected
(b) the conduct has the purpose or effect of—
(i) violating B’s dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or
offensive environment for B.
(2) A also harasses B if—
(a) A engages in unwanted conduct of a sexual nature, and
(b) the conduct has the purpose or effect referred to in subsection (1)(b).
(3) A also harasses B if—
(a) A or another person engages in unwanted conduct of a sexual nature or
that is related to gender reassignment or sex,
(b) the conduct has the purpose or effect referred to in subsection (1)(b),
(c) because of B’s rejection of or submission to the conduct, A treats B less
favourably than A would treat B if B had not rejected or submitted to the
(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the
following must be taken into account—
(a) the perception of B;
(b) the other circumstances of the case;
(c) whether it is reasonable for the conduct to have that effect.
Drawing the line between lawful and unlawful conduct
In the EqA, ‘unwanted conduct’ is frequently mentioned and it can be incredibly difficult to determine whether the conduct experienced is unwanted and therefore, unlawful. Race harassment claims often are not clear-cut as the same incident can be viewed very differently by the parties involved. For example, what one person considers to be a playful joke can be demeaning race harassment to another.
Sometimes, “banter” can be used as a defence in race harassment cases too and an employer may claim that any racist comments or behaviours were just “banter”. Whilst in some circumstances, conduct may actually be banter, this is not always the case. Even in situations where it may look like both parties are voluntarily taking part in the conduct which could be racially offensive and not taking any offence, one party may be a victim of harassment.
Unfortunately, both parties are rarely in an equal position and the person from an ethnic minority background, for example, will not actually want to participate in the “banter”. They may just be laughing off the unwanted conduct in an attempt to fit in and prevent the situation from becoming worse for them. Even if they are laughing, they can still be on the receiving end of serious harassment due to their race.
A characteristic of harassment is that it undermines the victim’s dignity at work or that it creates an intimidating, hostile, degrading, humiliating or offensive environment for them, and this will be taken into consideration when determining whether the conduct experienced was actually unlawful. When making a race harassment claim, the question is not what the Employment Tribunal would find offensive, it is what the victim thinks is unacceptable and offensive.
It is important to note that race harassment at work will be unlawful if the conduct has either the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or
offensive environment. Therefore, the motive or intention can be completely irrelevant, even if it was entirely innocent, when a claim relies on the effect of the unwanted conduct. At this time, an Employment Tribunal will take into account section 26(4) of the EqA.
Taking responsibility for race harassment at work
In race harassment cases, sometimes an employer may find themselves responsible. Unless a successful ‘reasonably practicable’ defence is brought to the Employment Tribunal, even though an employer did not necessarily approve of the unwanted conduct they may be held responsible for the comments and actions of their employees. An employer not knowing about the conduct in question will not prevent them from being held responsible either.
The compensation provided to race harassment victims
Commonly, the rhetoric of harassment involves jokes or unsympathetic comments about the protected characteristic of an employee, such as race. Comments of this kind are likely to be seen as offensive by the person on the receiving end of them. However, race harassment can also take on less obvious forms of treatment. For example, when an employee is deliberately left out of a certain activity, making them feel humiliated, intimidated and isolated.
When bringing a race harassment claim to an Employment Tribunal, there are a number of different factors that will be taken into consideration when a Judge makes their ruling for compensation. In addition to the type of unwanted conduct that took place, the effect this conduct had on the victim will play a role when compensation is being awarded.
Generally speaking, you can claim compensation for ‘injury to feelings’ in almost any harassment claim. Whilst there are some general guidelines in regards to how much you can receive for emotional distress, commonly known as the Vento Bands, to learn more in this regard it is beneficial to speak to a specialist employment lawyer. They will be able to provide you with more detailed information on how much compensation you may receive based on your individual circumstances.
It is important to note that in addition to monetary compensation for injury to feelings, the Employment Tribunal may also rule that an employer needs to do things such as;
- Send a written apology to the claimant
- Arrange discrimination and diversity awareness training for employees
- Write to all staff stating there is zero tolerance to racism in the workplace and racist jokes or banter will lead to disciplinary action being taken, including dismissal
- Provide training to HR Officers on how to deal with discrimination complaints
- Implement a grievance policy that is compliant with the ACAS Code of Practice
- Implement an equal opportunities policy
For example, in the case of Ms Anne Giwa-Amu v Department for Work and Pensions (Cardiff), the Claimant was awarded £42,809.32 compensation for injury to feelings, £31,102.57 in respect of past losses and £169,723.95 in respect of future losses. The tribunal also made several recommendations to obviate or reduce the adverse effects of the discrimination on the Claimant, including;
“ 81.4. On or before 25th May 2020, Peter Schofield (Permanent Secretary) and Debbie
Alder (Director General of HR) or equivalent, should read the Liability and Remedy
Judgments in this case and arrange a meeting with the Claimant (if she wishes to attend
such a meeting) to:
81.4.1. identify the failings in policies and procedures;
81.4.2. discuss the lessons that can be learnt from the Claimant’s experience as recorded in these Judgments; and
81.4.3. provide the Claimant with a written apology having reflected upon the judgments.
81.5. On or before 25th May 2020, the Respondent should approach the Equality and
Human Rights Commission and seek their assistance in reviewing the Respondent’s Equality Act 2010 and diversity awareness training, with a view to implementing effective training throughout the Respondent’s organisation on or before 25th May 2021.
Ultimately, the ruling made by an Employment Judge can differ quite considerably from one race harassment case to another depending on multiple factors and circumstances. It can be difficult to predict what the outcome of a case will be, but an employment law specialist will be able to provide you with some expert guidance in this regard.
Speaking to a specialist about race harassment claims
Should you wish to speak to an employment law specialist about race harassment in more detail, please do not hesitate to contact Damian McCarthy today. Damian has advised and acted for a number of employees who have suffered race discrimination, including; direct discrimination, indirect discrimination, harassment and victimisation. Regardless of what unwanted conduct you have experienced in relation to a protected characteristic, Damian will do all he can to assist you and help you to get the justice you deserve. Damian has represented clients at the highest levels and he is no stranger to handling complex employment law cases. So, with his extensive experience in employment law, you can rest assured that you will be in the best hands when you enlist his assistance with a race harassment claim.
therae was “institutional racism” at the club and a formal inquiry was launched.
Azeem Rafiq made a staggering 43 claims in total and subsequently, 7 of these claims were upheld. These claims were inclusive of players repeatedly using racially offensive terms towards him and the investigation concluded that he was the victim of racial harassment.
However, whilst the investigation revealed that at least one player admitted to using racially offensive terms, this player is insistent that he had no idea he was causing offence with his comments. The investigation has brought to light that many use racially offensive terms as ‘friendly banter’ without necessarily realising that these comments are creating an intimidating, hostile, degrading, humiliating or offensive environment.
It goes without saying that racial harassment has no place in sport, yet it is clear that many do not understand the consequences of ‘banter’ and what their unwanted comments and behaviour may actually amount to in the eyes of the law. Ultimately, the comments made towards Azeem Rafiq amounted to harassment under The Equality Act 2010 and they crossed the fine line between friendly ‘banter’ and unlawful racial harassment.
Establishing when racial discrimination has occurred
It is so important that employees are aware of what constitutes racial harassment in the workplace. It can often be hard to determine what qualifies as harassment because what one person believes to be harmless banter can be considered offensive by another and it is not uncommon for racially offensive terms or racist behaviour to be overlooked as they are portrayed as ‘jokes’ or ‘banter’. Continually overlooking this conduct can have a detrimental effect on employees though and in the case of Azeem Rafiq, the harassment he experienced left him close to taking his own life.
The Equality Act 2010 (EqA) is the key piece of UK legislation that covers issues involving discrimination, harassment and bullying at work. This piece of legislation lists ‘race’ as a protected characteristic and therefore, it provides protection to anyone who has suffered unfavourable treatment due to their race.
For many, the racial harassment they experience usually involves unsympathetic comments, jokes and gestures bearing negative racial connotations. This type of behaviour is understandably seen as offensive to those who are on the receiving end of it and is generally clearly recognised as harassment. However, there are also lots of less easy to identify scenarios that incorporate racially inappropriate behaviour and racially offensive terms in more subtle forms. It is these scenarios that many do not realise can still be constituted as harassment under employment law.
All employees need to know that when harassment falls into one of The EqA categories, a claim can be taken to an Employment Tribunal. So, if you are experiencing unwanted comments and/or behaviour due to your race, you should reach out to an employment law specialist for some tailored legal advice. Being treated in a manner that causes you emotional or physical suffering is unacceptable and you should not hesitate to take legal action against your employer, if applicable, to get the justice you deserve.
Speaking to an employment law specialist in London
If you are struggling to determine whether you have been experiencing racial harassment and would like to speak to an employment law specialist in London, please get in touch with Damian McCarthy today. Damian will gladly take the time to discuss The EqA with you in more detail and answer any questions that you may have in relation to acts of harassment. Damian has more than 20 years of experience handling complex employment law cases and you can trust that he is the best employment law specialist in London to turn to.
Should you decide to take a claim to the Employment Tribunal, this is something else that Damian can assist you with and he is known for fighting “tooth and nail” for his clients. Damian can work closely with you to develop a winning strategy that will get you results and he will be totally committed to your case. Unlike other employment law specialists in London, Damian will never settle your case because it is his interest to do so either and he is passionate about ensuring your interests are protected at all times.