Banter – It’s just not cricket
“Reasonable” has been overtaken in recent years as my most disliked word in the legal profession, finding itself demoted by “banter”. Banter has become the go-to word used by employees and employers alike to justify offensive behaviour that would otherwise amount to discrimination & harassment. It has reared its head again in the last 24 hours as the dispute between Azeem Rafiq and Yorkshire County Cricket Club continues.
It appears from newspaper reports that racial slurs used by teammates of Rafiq have been accepted as having been made by Yorkshire Cricket but are being played down as being ‘banter’.
If the comments reported to have been made were in fact made, then the behaviour would almost certainly amount to harassment on the grounds of race. The legal definition of harassment is unwanted conduct related to a protected characteristic (in this case race) that has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual.
Employees must be very careful as it does not matter whether they intended to insult someone as even if it was not meant to create the kind of environment set out above, it is the effect it has on the individual.
A defence often argued by individuals accused of harassment (and that has been suggested in the Yorkshire Cricket situation) is that the other person also made similar comments in an exchange, and so the accused’s actions could not amount to unwanted conduct. For example, a case I previously handled involved two employees, who were also friends outside of work and would regularly make derogatory comments about each other’s nationality/race. A manager then made a racial slur to one of the two employees resulting in the employee making a claim against his employer. In defending the claim, the employer argued that as the employee had been heard making similarly unpleasant comments towards his colleague, this meant that the slur by the manager could not have been unwanted conduct. The argument was rejected and the claim for racial harassment succeeded. Whilst the two colleagues had exchanged comments of a derogatory nature about the other’s nationality/race, the manager’s comment was isolated and was not part of the relationship between two friends. Had the claim been made by one of the colleagues about the other, then the defence would likely have succeeded, but it was specifically made in relation to the manager’s actions.
It is important for employers to have zero-tolerance to behaviour that could be seen as being inappropriate or offensive. Just because an employee does not step forward to object to the conduct in question, does not mean that they are not offended by it. They may lack the confidence to raise their concerns or feel that they may face a backlash from management or colleagues.
Employers should have policies in place that make clear the standards of behaviour expected from its employees and that bullying, harassment and discrimination of any kind will not be tolerated. Managers should be trained on identifying behaviours that fall foul of these policies as well as how to handle the internal processes (grievance & disciplinary) that follow. Employees should also receive regular training on equality & diversity to reinforce these values, have the consequences of behaving in such a way highlighted, and be given the confidence to challenge behaviour of this nature.
As Yorkshire Cricket are currently finding, the negativity for an organisation if situations such as this are not handled correctly can prove costly both financially and reputationally. The criticism being levelled at Yorkshire Cricket Club right now, definitely isn’t banter.
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