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Why the news on Azeem Rafiq and Yorkshire CCC is so important for businesses

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Gateley Legal NI

Article by

Paul Ball

Paul Ball

Rory Lynch

Rory Lynch

In July 2021 the government published its response to the public consultation paper on sexual harassment in the workplace. In recent months we have been discussing with our clients what employers should be doing in response. 

The most recent guidance from the Equality and Human Rights Commission recommended that in order to give employees the confidence to speak out knowing that a complaint will be properly dealt with, employers should be much more transparent about outcomes. This includes providing details of disciplinary action that has been taken against any perpetrators. Few employers are likely to do this at the moment, and it will often mean that complainants believe that their complaint hasn’t been taken seriously, and matters brushed under the carpet. 

As you will know, the issue of workplace harassment and dealing with complaints has been in the headlines with news of the racist treatment that former professional cricketer Azeem Rafiq was subjected to during two spells with Yorkshire County Cricket Club (YCCC). Mr Rafiq’s evidence to a DCMS Select Committee was powerful, and shone a light on some appalling behaviour towards him and other players of South Asian heritage at the club. 

A number of points worth highlighting:

  1. Mr Rafiq first complained to YCCC about racial harassment and bullying in September 2020. YCCC did begin a formal investigation into Mr Rafiq’s complaints the same month, which was conducted by external investigators.
  2. The investigation concluded in September 2021. “A very long time - maybe too long – but nothing too out of the ordinary with a complicated complaint”.
  3. The conclusion of the report was: 

    a) that Mr Rafiq had been the “victim of racial harassment and bullying” in relation to 7 of 43 separate allegations he raised – “OK, so you might expect some disciplinary action to follow”. 

    b) but that a racist term about his Pakistani heritage that was frequently said to (and about) him was not harassment but “friendly and good-natured banter” – “erm, here’s where it starts to unravel”.
     
  4. YCCC issued a summary of the findings of the report which acknowledged that Mr Rafiq had been the victim of racial harassment and bullying but that there had been insufficient evidence to conclude the club was institutionally racist – “whether or not this was the case, it starts to look like a possible cover-up”. 
  5. YCCC were ordered by an employment judge to disclose the full report to Mr Rafiq in then-ongoing Employment Tribunal proceedings but only sent to him a heavily-redacted copy, and after the deadline set by the ET – “it’s never a good move to ignore an ET order”. 
  6. Despite the findings of the report, YCCC said on 28 October that no-one would face disciplinary action – “erm, excuse me?!?”. 

Cover up or not, that’s what it looked like and the decision that no-one would face disciplinary action seems hard to fathom. It’s fair to say that the situation has escalated enormously, and in ways that few at YCCC would have predicted. The implications are being felt not just by YCCC (in terms of commercial revenue but also for several people at YCCC who have left their roles), but across cricket more widely. Similar allegations to those of Mr Rafiq are coming to light at other counties, some high-profile players have been accused of making racist comments, and the ECB has acknowledged that cricket is now facing an “emergency” over diversity issues. 

YCCC’s new chair, Lord Patel has said that Mr Rafiq “should be praised as a whistleblower”. Mr Rafiq’s ET claim was recently settled by YCCC, and it did not include a non-disclosure agreement, something that YCCC had initially wanted. On that point, it’s worth a reminder that any confidentiality clause wouldn’t have prevented Mr Rafiq from giving evidence to the DCMS Select Committee anyway, and also wouldn’t have prevented him from making further protected disclosures about how YCCC treated him and other players of South Asian heritage. 

Far later than it should have, finally YCCC appear to be trying to deal with this properly.

What does this mean for you?

Among the revelations that Mr Rafiq made in his evidence to the DCMS Select Committee hearing yesterday, two other comments stood out:

“All I wanted was an acceptance, an apology, an understanding, and let’s try and work together to ensure it never happens again”

“I was not going to let this go, no matter how much damage it causes me – I was determined to become a voice for the voiceless”

The principles apply to all forms of harassment, and we hear these kinds of comments by claimants in lots of harassment claim we deal with. You will probably have heard similar comments - particularly the first one - in any grievance meeting with an employee who has complained about harassment or bullying. 

While the Mr Rafiq/YCCC issue might be one that you think is an extreme case and it has blown up massively and unexpectedly, it may well turn out to be a watershed moment not just in cricket (a place of work), but across all workplaces.

Will you take any learnings from it? For instance, would you be willing to ensure that employees who bring complaints are made aware of the outcome? Would you give them the chance to participate in any steps you may want to take to resolve the findings and ensure that the behaviour is not repeated? 

What might this involve?

A few things. For instance:

  1. Internal policies could be revised to state that, should an employee’s actions as a result of a complaint result in any disciplinary action, the findings and action taken against the employee may be shared with the complainant in order to promote equality and diversity across all employees. 
  2. Amending data protection clauses in your employment contracts
  3. Updating any employee data privacy notice to include that data about disciplinary action taken may be processed, and when and how
  4. Communicate to employees the change in the data privacy notice
  5. If you think a particular matter could attract media coverage, have a pre-prepared statement ready which explains the relevant policy and how the matter is being handled and taken seriously.
  6. Most importantly:

    a)Treat complaints seriously

    b)Investigate them properly

    c)Don’t try and bury bad news – it will always come out at some point (and then the cover-up becomes just as much of an issue as the original complaint)

Key takeaway 

All this is hopefully a hypothetical scenario in your business. However, if you takeaway one point from this update, it is to consider this – if a situation arose similar to that which arose at YCCC, would your business be equipped to deal with it? 

  • Firstly, does the business send the right message about encouraging equality and diversity?
  • Are employees shown the right message regarding bringing complaints/making disclosures?
  • Are your policies up to date and equipped to manage the process?
  • Are your managers up to speed with how to carefully deal with investigations, outcomes and follow up disciplinary action?
  • Do you have a media ‘crisis response’ strategy if the press take an interest or details are leaked? This is especially the case if a whistle-blower is involved.
  • Think about the culture of your organisation and how you can ensure your colleagues feel heard, included and able to bring their true self to work?
  • We’re all responsible for creating a diverse and inclusive environment. Our Gateley group company t-three has a number of online exercises designed to challenge the way you think, encourage you to have conversations, but most importantly, create an environment where every colleague feels able to bring their whole self to work.
  • Find out more information around how t-three are supporting Mitie with their Diversity & Inclusion prgramme.

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