Institutionalised racism and cricket: a warning to all employers?

Those who have been following the news story about Yorkshire County Cricket Club and the instances of racist abuse highlighted by former player and whistle-blower Azeem Rafiq cannot have failed to notice quite how many individuals and entities are currently having to answer charges of racism for what was said and done by them or in their name.

Some truly horrific examples of the treatment meted out to Rafiq by players and coaches at Yorkshire CCC was unflinchingly recounted in grim detail during the Culture Media and Sport select committee hearing in parliament on Tuesday afternoon. The most high profile individual named, former England captain Michael Vaughan has been quick to deny the racist utterances attributed to him by Rafiq – and corroborated by England and Yorkshire bowler Adil Rashid. Rafiq’s response has been to underline the fact that the issue is far less about Vaughan – or any other individual for that matter – than it is about the institutions that at best ignored and at worst permitted such behaviour to take place and the truly malignant influence that such institutional culpability can have.

Institutionalised racism: what does the term actually mean?

Dating back to the political science of the 1960s, the term ‘institutionalised racism’ was first brought into the wider public consciousness by the publication in 1998 of the McPherson report into the Metropolitan police following the botched investigation into the killing of Stephen Lawrence. McPherson described it as "The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour that amount to discrimination through prejudice, ignorance, thoughtlessness, and racist stereotyping which disadvantage minority ethnic people."

What institutionalised racism ultimately describes is a culture within an organisation of indifference or acceptance of discrimination - essentially the accusation put by Rafiq towards Yorkshire CCC.

Employers’ duties and vicarious liability

The employment tribunal holds employers to arguably even more stringent standards relating to duties towards their employees. The well-established concept of vicarious liability imposes responsibility on the employer to ensure insofar as is possible, that instances of race discrimination (or any other form of discrimination under the Equality Act 2010) do not take place in their ranks.

This can be done by robust policies, compulsory training, reporting mechanisms and the stamping out of any such behaviour if it ever threatens to occur; only then will an organisation be able to successfully defend against a claim that they are vicariously liable for the acts of their employees - and the bar is high. In the past, witnesses on behalf of employers have been asked by Employment Judges on the stand to provide specific details of such policies or, for example, to recount their understanding of the difference between direct and indirect discrimination. If they cannot do so, then the safeguards will be deemed inadequate and the charge of vicarious liability will stand. None of this of course prevents the individual perpetrator(s) from being named as defendant either in addition to or alternative to the employer.

What’s Yorkshire CCC’s position?

Yorkshire CCC were aware of the behaviour detailed over recent weeks but brushed it aside in an internal report as ‘friendly banter’ (this by the way, purportedly included excessive use of the ‘P’ word and the labelling of Asian players as ‘Elephant Washers’).They are not currently having to answer for any of this in the employment tribunal: they settled Rafiq’s claim for race discrimination, harassment and victimisation with a six figure sum, by which point it was already in the public domain. It is worth noting that had they been able to secure a settlement agreement before the matter went public, they would still have been powerless to stop Rafiq from making a protected disclosure (normally referred to as ‘whistleblowing’), this being a statutory right that cannot be contracted out of even with a non disclosure clause.

As well as the financial cost, Yorkshire CCC will have to contend with the reputational damage and ancillary losses that this episode has (so far) cost them – the cancellation of sponsorship deals and the ECB’s decision to suspend them from hosting international matches will potentially cost them a lot more than Rafiq’s settlement figure.

Lesson to be learnt?

This episode has forced English cricket, UK sport and wider society to acknowledge the issues of racism within institutions and organisations. Yorkshire CCC have discovered to its grave cost the dangers of complacency to the wellbeing of its employees and to its own health as an organisation; an entity with less financial clout could easily have gone down the road of insolvency facing such penalties.

The more general consequence of all this is that a clear warning has been issued to all employers as to how important it is to ensure that such a culture is never allowed to develop amongst their staff.