As fallouts from workplace investigations go, it couldn’t get much worse for Yorkshire County Cricket Club. Their investigation into allegations of racism against player Azeem Rafiq has made headlines for all the wrong reasons after the investigation report leaked to the press. According to ESPN, the report concluded that the use of the highly racially offensive term “P***” by a senior player when speaking to Rafiq was “friendly, good-natured banter”. 

While the report concluded that Rafiq was the victim of racial harassment and bullying, the club said no disciplinary action will be taken against any employees, players or executives. It also said that it was unable to either prove or disprove institutionalised racism because of insufficient evidence.

Unsurprisingly, those conclusions haven’t gone down well, with MP Julian Knight calling it "one of the most repellent and disturbing episodes in modern cricket history". Health Secretary Sajid Javid – himself the son of Pakistani immigrants – has called for “heads to roll” at the club, while Rafiq described the findings as giving a “green light to racism”. As at the time of writing, the England and Wales Cricket Board has begun a full regulatory investigation into the outcome and a Parliamentary Committee has been set up to investigate the handling of the case.

So what lessons can be learned from Yorkshire CCC’s handling of the allegations? Following the death of George Floyd last year and the rise of the Black Lives Matter movement, allegations of racism in the workplace are becoming more prevalent, and it’s vital that these are taken seriously and investigated with due rigour. These are our top tips for workplace investigations:

1. Treat allegations of racism with the utmost sensitivity and take them seriously from the outset. Yorkshire CCC has now apologised and admitted that it failed properly to escalate the allegations when they were first raised privately in 2018. Even if complaints are not raised through formal channels, if you become aware of an allegation of racism you should take it seriously and speak to the alleged victim about how they want you to deal with it. Even if they do not want to raise a formal grievance, you may consider that the allegations are so serious you need to investigate regardless.
2. An investigation into serious allegations within your organisation may result in findings that you did not expect or want to hear. When beginning an investigation, the parameters of the investigation should be clear and you should be prepared for adverse findings. The organisation must be willing to accept these with an open mind and to invoke real change (and disciplinary action, where necessary) in light of any substantiated allegations. It is hard to imagine any situation where it would ever be appropriate to dismiss the use of racist language as “banter” between colleagues.
3. Especially with high profile workplaces, be prepared for investigation reports to be leaked to the press. Will your report stand up to outside scrutiny? Bear in mind most workplace investigations are not subject to legal privilege, which can make it harder to control who the report is seen by and how it may be circulated beyond the original recipients. Your investigation report could end up in the public eye and cause substantial outcry if it falls short.
4. Racist comments are clearly capable of creating an intimidating, hostile, degrading, humiliating or offensive environment. In turn, this can expose your organisation to claims of harassment under the Equality Act 2010 and other discrimination claims. Remember, whether or not behaviour amounts to harassment is judged on how it is perceived by the complainant, regardless of whether the perpetrator intended to cause offence.
5. The best way to avoid a discrimination investigation within your organisation is to have a healthy culture and actively promote diversity and inclusion, before issues arise. For example, we recommend regular and compulsory training on topics such as microaggressions, unconscious bias and institutional racism; appointing senior members of staff to champion diversity and inclusion and to communicate a zero-tolerance attitude towards racist behaviour; electing representatives or other ways for employee consultation to take place; internal mentoring schemes and networks; and setting targets for inclusion and diversity.

If you have any concerns about investigating an instance of racism or other allegations within your organisation, please reach out to your regular Lewis Silkin contact to see how we can help.