What can employers learn from the Azeem Rafiq case?
21 December 2021
Azeem Rafiq recently settled his Employment Tribunal claim against his former employer Yorkshire County Cricket Club (YCCC) for a reported six figure sum. The claim arose after he was the subject of sustained racial harassment and bullying over the course of his two spells with the club. The case was widely reported in the media and the reputational damage to YCCC has been huge. In this article we look at what employers can learn from YCCC’s mishandling of the case.
Timeline of Events
From what has been reported, it is our understanding that the timeline is as follows:
- September 2020 – Mr Rafiq spoke out in interviews about the “institutional racism” that he had experienced whilst playing for YCCC. The club then appointed external investigators to look into this.
- December 2020 – Mr Rafiq issued his claim to the Employment Tribunal claiming direct discrimination and harassment on the grounds of race, as well as victimisation and detriment as a result of him trying to address racism at the club.
- August 2021 – The investigation concluded with YCCC being provided with a lengthy investigation report which concluded that Mr Rafiq had been the victim of racial harassment and bullying. YCCC then admitted that Mr Rafiq had been “the victim of inappropriate behaviour” and offered him their “profound apologies” but did not publish the findings of the report.
- September 2021 – YCCC issued their own summary of the findings of the report which acknowledged that Mr Rafiq had been the victim of racial harassment and bullying, but said that there had been insufficient evidence to conclude the club was institutionally racist.
- October 2021 – YCCC did not comply with a case management order of the Employment Tribunal to disclose the report to Mr Rafiq. A few days after the deadline to do so, they provided him with a heavily redacted copy. Towards the end of the month, YCCC said that no-one would face disciplinary action, despite the findings of the report.
- November 2021 – YCCC lost several sponsorship deals as more information came to light, including that a racist term used about Mr Rafiq’s Pakistani heritage had been considered to be “friendly and good-natured banter”. YCCC then disclosed the full report to the Digital, Culture, Media and Sport select committee in advance of a hearing before them. Their Chairman resigned and was replaced by Lord Patel and within days of his appointment, Mr Rafiq’s Employment Tribunal claim was settled.
- December 2021 – YCCC announced that 16 members of staff including the entire coaching team are to leave the club.
What can be learned?
In short, a lot!
Employers need to be mindful to promote equal opportunities within the workplace and they should have robust policies in place that set out the standards expected of all employees and what action they may face if they fail to adhere to these.
Offering equality, diversity and inclusion training to employees on a regular basis is also a good idea. Employers are vicariously liable for acts of harassment, victimisation and discrimination carried out by their employees unless they can show that they have taken all reasonable steps to prevent them committing the unlawful act. Regular training can assist employers in establishing a reasonable steps defence.
If a grievance is raised by an employee then it needs to be taken seriously and reasonably investigated. What is reasonable will depend on factors including the size and resources of the employer. Where, as in Mr Rafiq’s case, the complaints are of an institutional nature, then appointing an external investigator is likely to be appropriate.
Once an investigation has been completed, employers need to carefully review the report and consider what action is appropriate. Trying to cover things up, or label unwanted and offensive language as “banter”, is never a good idea. Once a matter reaches an Employment Tribunal, disclosure of the report is fairly inevitable.
Mr Rafiq’s settlement did not include a confidentiality clause, and the reputational damage to one of England’s most historic cricket clubs is likely to continue as more details emerge. Although it is hoped that the sort of treatment received by Mr Rafiq is not commonplace, employers need to adopt a culture that encourages not only equality, diversity and inclusion, but also one which takes grievances seriously and adopts the right approach to resolving them.
Our team has many years of experience in handling investigations and are able to give an objective view, which can often assist when dealing with a challenging situation.
If you are an employer requiring assistance with a grievance or disciplinary investigation, then we can help. Please call us on 01243 836840 for a no obligation chat, or email us at [email protected].