“Too many words and not enough action”: Victimisation and employer responsibilities

Majid Haq, a top Scottish cricketer, has recently spoken to the BBC about his experience of racism in Scottish cricket. He was dropped from playing for Scotland in its match against Sri Lanka in the 2015 Cricket World Cup in Australia, and indicated that his omission from the Scotland Team was on racial grounds, when he posted the following tweet:

“Always tougher when in a minority #race#colour.”

As a direct result of his race related tweet, he was sent home from the 2015 Cricket World Cup in disgrace. He had represented Scotland on more than 200 occasions, but sadly this incident had a lasting detrimental impact on his career, resulting in him never playing for his country again. His action, according to Cricket Scotland, “amounted to unprofessional conduct likely to bring Cricket Scotland into disrepute”.

Mr Haq was born in Scotland and is of Pakistani descent. He felt he had been victimised on grounds of his race and, in November 2021, he called for an investigation into institutional racism in Scottish cricket.

Cricket Scotland’s investigation into racism

Cricket Scotland (the sport’s governing body) commissioned an independent review into allegations of racism in Scottish cricket. The report was published in 2022 and found evidence of institutional racism and highlighted a staggering 448 examples. It also concluded that those who raised issues were either ignored or sidelined and a culture of “racially aggravated micro-aggression” was allowed to develop.

As a consequence of the 2022 report, Cricket Scotland instructed two law firms and a race equality charity to independently investigate allegations of racism made by former players and others in cricket. It is understood that they provided two separate reports.

One report stated that although Mr Haq’s tweet was an “improper way of raising the issue”, instead of investigating the reason it was sent, Cricket Scotland simply saw Mr Haq “as the problem”. It concluded that Mr Haq’s allegations were dismissed rather than being properly investigated, and that he was victimised for raising his concerns. Specifically, it stated “…the very notion that there was any issue of racial discrimination in cricket was not only dismissed out of hand, but Majid was victimised for having raised it”.

That report also suggested “members of the cricketing community have blamed Majid for raising the issues of race in Scottish cricket” and that his later career as umpire was “substantially undermined” as a result of him speaking out.

The second report is understood to offer a different opinion. Mr Haq’s request to see the reports were rejected by Cricket Scotland on the basis that they were prepared for internal use only.

Cricket Scotland refuted all claims that it was not addressing the issue of racism and said it was implementing more than 200 recommendations made for improvement.

A positive sea change in Scottish Cricket?

The hope was that independent investigations into the concerns raised would result in tangible changes being made within the sport, in terms of diversity, inclusion and governance. However, Mr Haq believes that there has been a lack of accountability since he spoke out. Instead, he believes that “everything is being brushed under the carpet” and “we’re still not any further forward sorting things out…”.

Victimisation under the Equality Act 2010

It is unlawful to discriminate against someone in respect of the following protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation; victimisation is also unlawful.

Victimisation occurs where someone treats another person detrimentally because they have done, or might do, a protected act (or because they believe that person has done, or might do, a protected act). However, the victim does not need to have a particular protected characteristic to gain protection, what is relevant is the protected act.

The following are defined as protected acts under the Equality Act 2010 (“EqA”):

• Bringing a claim / making a complaint of discrimination under the EqA
• Giving evidence or information in connection with a claim under the EqA
• Alleging (expressly or otherwise) that the respondent or another person has breached the EqA
• Doing anything else for the purposes of or in connection with the EqA.

It is important to note that an individual is not protected where they give false evidence or information or make a false allegation in bad faith – this would not amount to a protected act. However, erroneous allegations that are made in good faith are protected.

Therefore, an employee will be victimised if they are treated unfairly or to their detriment because they have done a protected act – crucially, the employee must be able to show a direct link between the protected act and the detriment.

Would the allegations against Cricket Scotland amount to victimisation?

Mr Haq asserted that he was sent home and therefore excluded from any further participation in the 2015 World Cup because he posted a race related tweet. This would amount to victimisation.

The protected act is Mr Haq’s allegation in his tweet that Cricket Scotland’s decision not to select him for the match against Sri Lanka in the 2015 World Cup was because of his race, i.e., he has made an allegation of race discrimination against Cricket Scotland. He was subjected to a detriment because of his protected act – the detriment being that he was sent home and unable to play for his country in the 2015 World Cup. Mr Haq believed this was because he had made the race discrimination allegation and as such, there was a direct link between the protected act and the detrimental treatment.

What compensation can be awarded for victimisation?

In Mr Haq’s case, it is possible that he entered into a settlement with Cricket Scotland in respect of his allegations; this is one option which an employee may wish to explore. An alternative option is to pursue a claim for victimisation (as well as a claim for discrimination) at the Employment Tribunal. If a finding of victimisation is made, any compensation could include an award for the following:

Loss of earnings

Loss of earnings were suffered because of the victimisation (for instance, if an employee has lost out on a bonus or resigned as a result). Mr Haq suffered financial losses as a result of being sent home from the World Cup and never playing for Scotland again.

Injury to feelings

Injury to feelings awards are assessed by reference to the Vento guidelines, as established in the case of Vento v Chief Constable of West Yorkshire Police (No 3).

The lower band attracts an award of £1,200 to £11,700 and is applied to “less serious and cases, such as where the act of discrimination is an isolated or one-off occurrence".

The middle band ranges from £11,700 to £35,200 and applies to "serious cases, which do not merit an award in the highest band".

Finally, the top band ranges from £35,200 to £58,700 and applies to "the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race". However, only in "the most exceptional case" should an award for injury to feelings exceed the top of this band.

These bands increase annually in line with inflation with effect from 6 April each year.

Personal injury

Personal injury, such as psychiatric injury caused by the victimisation.

Aggravated damages

Although rare, employees may also be awarded aggravated damages where there is evidence that the respondent has acted in a "high-handed, malicious, insulting or oppressive manner" and in doing so, has aggravated the injury.

So, what’s the takeaway?

The takeaway from this is that employers need to:

• take steps to prevent victimisation from occurring within the workplace or to minimise the likelihood of this happening;
• treat concerns / grievances raised by employees seriously, which means investigating them fairly and properly as well as taking appropriate action;
• ensure that they don’t subject employees to any detriment / unfair treatment as a consequence of raising genuine concerns;
• establish clear anti-discrimination (including victimisation) policies and grievance policies and keep these up to date;
• provide regular training for both senior management and other staff; and
• keep accurate written records of any concerns / allegations raised by employees as well as details of any investigations undertaken / action taken in response.

Importantly, employers need to ensure that they are not guilty of “too many words and not enough action”. Issues concerning discrimination (whether on the grounds of race or any other protected characteristic) and victimisation need to be addressed head on, and appropriate action needs to be taken to tackle any concerns.

Contact us

If you have any questions about victimisation under the Equality Act 2010 or require help in providing training to your staff, please contact a member of our Employment team or submit an enquiry form, below.