Jordan Bruce a Solicitor at specialist employment law firm Collingwood Legal takes a look at the recent racism storm to hit county cricket.
Yorkshire County Cricket Club (“YCCC”) have made headlines recently after an investigation found a former player was subject to racial harassment and bullying. Despite such a serious finding, YCCC concluded that no disciplinary action would be taken against those involved, finding that the incidents in question, which involved the use of racist language, amounted to “friendly banter” and that the player was not offended by the comments made. This issue did not go away for YCCC and as a reaction to matters sponsors withdrew support for the club and resignations from the Board and management at YCCC followed.
So, in what circumstances is banter innocent humour and when does it amount to harassment?
Under section 26 of the Equality Act 2010, a person harasses another if they engage in unwanted conduct related to a relevant protected characteristic (e.g. race, disability, sex) which has the purpose or effect of either violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
A one-off incident can amount to harassment and as can be seen from the above definition, the conduct does not have to be intentional or even directed toward the person for it to amount to harassment.
It merely needs to have the effect of doing so. For example, telling a racist joke might offend colleagues regardless of their race and this could amount to harassment.
When considering if conduct has the proscribed effect, a tribunal will take into account the person’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. A fairly recent Employment Appeal Tribunal (“EAT”) held that calling a claimant a “fat ginger pikey” was not race harassment despite the claimant’s links with the travelling community. The EAT in that case held that the comments were not unwanted as the claimant actively participated in the banter and it did not have the purpose or effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. This decision demonstrates how harassment cases are fact sensitive and the context must be considered.
Employers can be liable for harassment by employees if it was in the “course of employment”, regardless of whether or not it was known unless an employer can argue that it took “reasonable steps” to prevent employees from doing discriminatory acts. Employers should therefore be giving appropriate anti-harassment training to make clear what is and what isn’t acceptable behaviour in the workplace and refreshing this training regularly, have up to date anti bullying and harassment policies and be sure to properly investigate and deal with complaints of harassment in accordance with appropriate grievance and disciplinary procedures.
A finding of harassment can not only prove costly for employers as compensation in discrimination cases is unlimited but also the negative publicity and reputational damage can be significant as seen with the YCCC case. Therefore, all employers should be taking steps to ensure that employees know where to draw the line and how humour can become harassment.
If your business is dealing with a harassment complaint or would benefit from investigation training, Collingwood Legal are running a webinar on how to conduct employment investigations in the workplace from 1
