Cricket, lovely cricket?

Cricket, lovely cricket?

One of the most difficult situations a business – small or large – can face is when an employee, or ex-employee, makes an allegation of discrimination. The natural, and understandable, reaction of many is to become defensive – but as the recent coverage of the issues raised by former cricketer Azeem Rafiq about Yorkshire Cricket Club have shown, it’s possible for an organisation to make a bad situation far worse. As one MP said, Yorkshire’s response to the allegations was a “Venn diagram of stupidity.”

I’m not going to comment on the Yorkshire situation (plenty of others have done that) but there are some key learning points for all companies to try to avoid the club’s many mistakes

  • Take any allegation seriously. If someone feels strongly enough to raise a formal complaint about racism/sexism or any other discriminatory behaviour, then you have a duty to follow it up, no matter how uncomfortable it might be.
  • If possible, have the allegations investigated independently. But don’t bring in lawyers to do it – approaching the issue as a way of avoiding tribunal claims or other litigation automatically means that the investigation is skewed.
  • Equally, don’t treat it as an exercise in reputation management. The role of an investigation is to decide if there is any substance to the allegations and make recommendations on how to resolve the situation, not to protect your business when it may have done something wrong
  • Don’t just make it about individuals. While in some cases the ‘rogue employee’ defence may be true, it’s unusual that they will have been able to get away with discriminatory behaviour unless others have tolerated or ignored it. As Azeem Rafiq pointed out in relation to events that happened in the presence of England captain Joe Root “Maybe he didn’t remember it, but it just shows the institution that a good man like him cannot remember those things” (my emphasis)
  • Don’t allow your own view of incidents to take precedence. It is sometimes suggested that  an individual is being ‘over-sensitive’ and if this is genuinely the case then there may be little substance to the allegations.  But what is ‘over-sensitive’ to you may be the culmination of a series of micro-aggressions to the individual – things which individually are not worth mentioning but which cumulatively result in a perception of discriminatory behaviour. This powerful video makes the point very effectively.
  • Take action on the findings – don’t brush them under the carpet. And this doesn’t just mean ‘sacking a perpetrator’ if deeper organisational issues are revealed.

Not dealing with matters invariably makes the situation far worse. And while your organisation may not end up all over the media or having to justify its actions to MPs, rest assured that the long term damage to it may be just as bad.

My thanks to Business Coach and Organisational Culture Specialist Lorna Leeson (@reallornaleeson) for some of the ideas and points featured in this post.

No Jab No Care Home Job?

There’s been much in the media today about the fact that the Government is to ‘require’ care workers to have the Covid-19 vaccination in order to continue working in front line support. Those who don’t will either have to be moved into work that doesn’t bring them into contact with residents or dismissed.

While the employment law implications are one which may worry business owners, the decision throws up a whole series of HR issues for that particular sector – ones which may also have implications for a lot of employers in the broader health/social care sector (which includes many of my charity clients)

Firstly, it’s important to remember that no vaccination is required by law in the UK.  The often quoted example that ‘doctors and nurses must have a Hepatitis B vaccination’ is based on clinical guidance issued by Public Health England which is then adopted by individual NHS and other healthcare employers as part of their health and safety policy/risk assessment process.  

If the government introduce a specific law (which would take some time to go through the parliamentary processes) or regulation (which wouldn’t) then sacking someone who fails to comply would be fair in law as a ‘statutory restriction’. (Update 21/6/21 – the change will be introduced by regulation, effective October 2021) An employer must still go through a fair process – exploring redeployment options before taking a decision to dismiss – and a dismissal would be with contractual or statutory notice.

If however they introduce the new rules as (prescriptive) guidance then it will be down to the individual employer to build them into their health and safety policy and recruitment guidelines.  While employers would be expected to follow them, it would be very difficult to justify dismissing someone (or not recruit someone) using the statutory restriction argument. Employers would probably have to rely on the catch all “some other substantial reason”, again ensuring that they dismiss with appropriate notice.

In addition to the risk of potential unfair dismissal claims, the sector already faces serious staff shortages with some estimates that there are 100000+ vacancies at the moment. The prospect of sacking otherwise competent staff at a time when it is difficult to recruit, and reducing further the number of prospective job candidates, is likely to cause further problems.

Care businesses will also need to communicate the changes clearly and effectively to staff; take time to collect appropriate vaccination records; perhaps give time off for people to be vaccinated; and ensure that staff understand the consequences of not being vaccinated. This is particularly important for the small number of people who are advised not to have the vaccination because of a health condition, which may mean there are also disability discrimination issues to be addressed.

None of this is to say that the aim of having all care home workers vaccinated (or indeed health and social care staff more generally) is a bad one. But we have seen too many instances in recent years of rushed new regulations being implemented without proper thought-through consequences, and subsequently having to be amended or repealed, for employers to be confident that another hastily announced policy will be any more effective.

It’s a mixed up, muddled up, shook up world?

At the start of 2020 (when a new virus affecting people in parts of China was hardly being covered in the news) I published a blog post on the issues of philosophical belief and how employers should consider issues relating to it, in the light of two high profile cases. on veganism and gender-critical beliefs.

The Employment Appeal Tribunal (EAT) has ruled today on the appeal in the gender-critical case. That case originally failed on the grounds that the claimant’s gender-critical beliefs could not count as a philosophical belief on the basis that they failed the 5th legal test, that a belief “must be worthy of respect in a democratic society and not be incompatible with human dignity or in conflict with the fundamental rights of others”

The EAT overturned this view, stating that a belief would only fail the 5th test if it was ‘akin to Nazism or totalitarianism’ or espousing violence and hatred ‘in the gravest of forms’; a belief that simply was ‘offensive, shocking or even disturbing to others…would not be excluded from the protection’.

This is a subject which results in much heated and vitriolic debate, particularly on social media platforms. The purpose of this post is not to discuss the merits of these views (or the decision itself) but to highlight to employers a key part of the judgement. The EAT was very clear and explicit that:

a. This judgment does not mean that the EAT has expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing.


b. This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of {Equality Act] EqA will be for a tribunal to determine in a given case.


c. This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA. They do. Although the protected characteristic of gender reassignment under s.7, EqA would be likely to apply only to a proportion of trans persons, there are other protected characteristics that could potentially be relied upon in the face of such conduct.


d. This judgment does not mean that employers and service providers will not be able to provide a safe environment for trans persons. Employers would continue to be liable (subject to any defence under s.109(4), EqA) for acts of harassment and discrimination against trans persons committed in the course of employment.

The above points are taken directly from the judgement (which you can find here if you want to read it in full) – they are also evidence that court judgements aren’t always in impenetrable legalese! They are however a very useful reminder that discrimination, bullying or harassment are something which an employer is liable for regardless of whether the alleged harasser claims they are only doing so because they have a particular religious or philosophical belief.

Woolly Bully

Workplace bullying is back in the news in the UK, so I thought it might be helpful to outline the position for small businesses.

Bullying isn’t defined in employment law, although harassment is (section 26 of the Equality Act) – harassment being ‘unwanted conduct that…violates someone’s dignity…or creates an intimidating, hostile, degrading, humiliating or offensive environment” for an individual (my emphasis). Although this definition of harassment relates specifically to the protected characteristics under the Act, it does form the basis for many organisations’ policies on conduct for all staff.

In practice, bullying is often considered to be harassment by someone in a position of power over the individual – such as a boss.

Bullying can take many forms, but some I’ve encountered in my working life include

  • Giving impossible targets for a subordinate  – setting someone up to fail
  • Making public derogatory comments about a more junior member of staff, either when they are present or to other team members in their absence
  • Shouting, swearing or other verbally aggressive behaviour.
  • Micromanaging an individual, picking up every slight error
  • Treating an individual differently (for example enforcing applying a strict lunchbreak when others are allowed to take as long as they like).

It’s important to remember that both the Equality Act and case law have made it clear that it is the perception of the individual, not the intention of the alleged bully that is what counts – so “I didn’t mean it” is not an excuse for unacceptable behaviour, although it may be a mitigation for any penalty given (something I have discussed before).

Other excuses that won’t wash include “I just have high standards and expect everyone to conform to them” (you can have high standards without being aggressive towards your subordinates) “X is not up to the job” (performance management is about being supportive and agreeing clear targets) or “I’m just a woman operating in a man’s world, so I need to show I’m strong and decisive” (a poor culture doesn’t excuse your bad behaviour)

Of course, this doesn’t mean automatic dismissal for someone found to be bullying their subordinates – an employer is expected to make a reasonable decision considering all the circumstances of the situation. So a manager who hadn’t realised the effect their actions were having on their team members might be given a warning. It’s for you to decide. But you also need to consider the impact that not dealing with a bully will have on, not just on the individual who has raised the concern but on the rest of your workforce.

Bullying allegations can be difficult for small businesses to deal with, especially if the person accused is one of your key managers. But failing to act can lead to more negative consequences.

Handling Redundancies during Covid

ACAS – the independent employment advisory service, the employer’s organisation (CBI) and trade unions (TUC) have issued a joint statement today about handling redundancies during the COVID pandemic, especially with the UK’s furlough scheme set to end in October and what, if anything, will replace it still to be announced.

The full statement is here https://www.acas.org.uk/joint-statement-acas-cbi-tuc

The key principles it outlines are something which I would always recommend to employers, no matter how big or small:

  • Be open about why you need to make redundancies
  • Give people as much information as they need to be able to respond properly
  • Consult genuinely – listen to what people have to say and give it proper consideration
  • Do it fairly – legally correctly and in a way that is ‘felt fair’ by everyone in the business
  • Handle it with dignity – a person is losing their job through no fault of their own. They aren’t just a ‘human resource’ to be disposed of.

If you need help or guidance with handling redundancies both legally, and with professionalism and integrity, please don’t hesitate to get in touch