November 4, 2021
Despite YCCC’s Chairperson, Roger Hutton, having acknowledged that Rafiq had been the victim of racial harassment, with seven of the 43 allegations upheld in a report produced by an independent panel, YCCC concluded that no disciplinary action should be taken against the perpetrator(s) on the basis that the racially offensive term used towards Rafiq was simply intended as “friendly and good-natured banter”. It also suggested that Rafiq was guilty of similar behaviour by referring to a colleague as “Zimbo”, which all reasonable commentators agree has entirely different connotations from the racist language used against Rafiq.
Widespread condemnation has followed the leaked report, with a number of MPs calling for the resignation of YCCC’s board members. The adverse publicity has also resulted in many of YCCC’s sponsors withdrawing their support of it.
The law of harassment
Azeem Rafiq’s claim against YCCC was brought under the Equality Act 2010 (“EqA ”), which is intended to protect employees from discrimination at work because of a protected characteristic, such as race, disability, or sexual orientation.
Under Section 26 EqA, a person (A) unlawfully harasses another person (B) if A engages in unwanted conduct related to a relevant protected characteristic with the purpose or effect of violating B’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for B. Whether or not A intended to harass is not a relevant consideration, with the Employment Tribunal instead directed to consider B’s perception of the harassment.
Having previously rejected a settlement offer believed to have been worth around £100,000, the acceptance of which would have been conditional on Rafiq entering a non-disclosure agreement, Rafiq’s claim is set to proceed and the Employment Tribunal’s final decision in this matter will be of great interest to employers and employees alike.
Employers can be held vicariously liable for harassment by their employees. There is a statutory defence if the employer can show that they took “all reasonable steps” to prevent the harassment. These could include having Equal Opportunities and Dignity at Work policies and also giving equality and diversity training. However, the EAT’s recent decision in Allay (UK) Ltd v Gehlen makes clear that for the defence to succeed, any such steps must be reviewed regularly and not be allowed to grow stale.
Employers should also take care in jumping to conclusions if it appears that an employee was taking part in “banter” when they were in fact being subjected to harassment. In certain situations, appearing to play along with unwanted conduct can be a coping mechanism for employees, particularly if they want to avoid drawing further attention to themselves by objecting to it.
If you are an employee and believe that you have been the victim of harassment, or if you are an employer whose employee has brought a claim of harassment against you, please get in touch with Damian Phillips for an initial free, no obligation conversation to discuss your options.
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