A recent example of this being the matter of Yorkshire County Cricket Club, whose mishandling of Azeem Rafiq’s historical allegations of racism became the subject of a major investigation by the digital, culture, media, and sport select committee.

Having dismissed the claims as "friendly and good-natured banter" that didn’t merit disciplinary action, the club found itself engaged in a very public legal, financial and reputational tug-of-war – serving as a stern warning, not just to those in the world of sport, but to employers throughout all other industries too.

Keeping racism from encroaching into the workplace is a moral necessity. Having the appropriate procedures and policies in place should ensure incidents of racial harassment are unlikely to happen, and that if they do, they will be handled in a way that protects the best interests of both your employees and the business as a whole. 

There is no doubt that it’s a complex and emotive problem, but ignorance is never an excuse for inaction. Here we take a more in-depth look at how racism at work is viewed by the law, and what business owners can do differently to educate themselves on the matter: 

How is racism defined by the law?

Discrimination on the grounds of race was introduced into UK law by the Race Relations Act 1976 and now forms a key part of the Equality Act 2010. Guidance and code of practice were provided by the Equality and Human Rights Commission (EHRC), which whilst not legally binding, do offer a framework to work towards. Those judged to not be abiding by this code are often criticised heavily by courts and tribunals.   

Understanding exactly what discrimination is will be key to preventing it from occurring in the workplace. The Equality Act 2010 sets out several types of discrimination as they apply to nine protected personal characteristics (one of which is race):

• Direct discrimination - when a person is being treated less favourably because of their race – eg, a black person earning less than a white person doing the same job. 
• Indirect discrimination – When workplace policies disadvantage someone due to their race. Eg, banning certain hairstyles or headwear which is worn for cultural reasons, disproportionally affecting people of Black/Asian heritage.
• Associative discrimination - Treating an individual less fairly because they socialise with people of a specific race.
• Perceptive discrimination - Treating someone less fairly because they are believed to be of a different race, even though they aren’t. 
• Racial harassment - Infringing an individual’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment by targeting their protected characteristic(s).

How is racism impacting the workplace? 

Employment tribunals dealing with race discrimination soared by 48% during 2020. It’s an upward trend that has been evident for some years, growing from 2,036 cases in 2017, to 3,641 by 2020.

High-jinx or misjudged playful interactions between colleagues is a much misunderstood and disregarded catalyst for many race discrimination claims, as would appear to be the case at Yorkshire County Cricket Club.

Implying that any remark with racial connotations is simply ‘banter’ is a dangerous precedent. Although at a glance the difference between overt racism and perceived banter can be negligible, it is the opinion of the target to whom the comments were made that is the most important factor. It should never be about the person who made the remarks, or how they intended their words to be received.  

Intention is irrelevant. A comment made with racial undertones will always have the potential to cause a person harm. Assuming something is funny or non-malicious is not an excuse, and criticising someone’s negative response to it will only further marginalise them.

Not acknowledging this, or failing to prevent such potentially destructive repartee, could be enormously costly in the long run.

How can a business protect itself?

The goal of every business should, of course, always be to create a culture in which racist behaviour is unlikely to occur, but also where complaints are taken seriously, investigated, and dealt with appropriately. 

As such it’s crucial that businesses develop thorough inclusion, diversity, and grievance policies, and have a framework in place to prevent discriminatory behaviour. These should ensure that businesses are better prepared to defend themselves against any claims of harassment, whilst also enabling the employer to initiate disciplinary proceedings as and when necessary. 

Any policy of this ilk should ideally be based on in-depth consultation with all employees in order to be truly representative of the workforce. It will need to include the appropriate mechanisms for highlighting any incidents of inequality, racism, or discrimination, and should be regularly evaluated in operation so as to prove that it is effective in dealing with any complaints made.

It is also prudent for a member of senior management to be made actively responsible for diversity and inclusion. They should be responsible for communicating a strict zero-tolerance approach to any form of racial discrimination and disciplining anyone found to be in breach.  

It’s advisable to undertake thorough training designed to explain, exactly what is meant by racism in the workplace and as well as terms such as ‘unconscious bias’, as this will remove any doubt over what behavioural expectations may be.

How should complaints be dealt with?

Complaints need to be handled in a manner that best reflects the wishes of the complainant. They could simply request an apology, or ask that the situation be monitored in the future. But depending upon the seriousness of the allegation, it might mean that a more formal grievance is lodged and disciplinary proceedings commenced.

Following a formal grievance procedure showcases an acute understanding of the gravity of the situation and ensures strict protocols are met whilst deciding on the next course of action. 

Other responsible steps will include providing whatever support is available to the victim. This could include counselling through an employee assistance programme (EAP) or a staff support network. Or, if necessary, providing access to an external organisation that can provide support to targets of harassment, bullying, and discrimination. 

Sometimes, the victim may choose to report the matter to the police. If circumstances become this serious then employers should always seek expert legal advice to assist with understanding the rights of the complainant, those of the person against whom the complaint is being made and you as an employer.

Even if the case ultimately goes to court and the complainant doesn’t win, employers might still be in a position to take disciplinary action against the perpetrator, as the amount of proof needed for this is lower than that required by a court. 

The failure to manage racism

Failure to prevent a culture in which racial discrimination and harassment can thrive, or inadequately dealing with an incident that arises, could result in irreparable damage to your business. 

Not only could you lose valuable members of your team, but you might also have to defend an employment tribunal claim. At its worst, these kinds of cases can cause massive reputational harm. In an era in which the social responsibility of brands massively impacts customer behaviour, this could also result in a substantial hit to the bottom line. Put simply, promoting inclusivity and protecting your workforce is good for business as well as being the overwhelmingly ethically correct thing to do. 

Racism is not only morally redundant but also mentally destructive for anyone targeted. By holding participants in such inexcusable activities accountable, employers can preserve not only the psychological welfare of their workers but create a more productive and respectful environment for all concerned.