6th September 2022
During the off-season, Ofcom and The Alan Turing Institute published their report on a study undertaken into Tweets directed at Premier League footballers during the first half of the 2021/22 season. The results were staggering. An abusive tweet had been directed at almost 70% of players during that period. At the worst end, 50% of abusive Tweets were directed at just 12 players.
For clubs, though, their obligation to take action to protect their players is principally a moral, rather than legal (at least as matters currently stand), one. There is no general duty to protect employees from third-party abuse, and the government repealed the legislation under which an employer could be liable for failing to take reasonably practicable steps to prevent third-party harassment in 2013. While there’s nothing concrete on the horizon, it’s not inconceivable that this legislation could be resurrected at some point in the future.
When could a club be liable?
Broadly speaking, an employer will only be liable for the abusive acts of a third party in narrow circumstances:
1.Direct discrimination or harassment. The employer’s failure to protect the employee against the abuse amounts to direct discrimination or harassment in and of itself. This puts the onus on the employee to prove that their employer’s inaction was motivated by the race, sexual orientation or other relevant ‘protected characteristic’ of the employee.
2.Indirect discrimination. The employer adopts a ‘practice’ which puts persons (including the complainant) with a particular protected characteristic at a disadvantage when compared to persons who do not share that protected characteristic. Where that is the case, the practice will be indirectly discriminatory unless the club can show that their actions constitute a proportionate means of achieving a legitimate business aim.
For example, a football club may choose not to get involved with abuse directed at its players on social media as a blanket practice, i.e., it has a ‘practice’ of staying silent. While the practice applies to all equally, statistically, individuals belonging to an ethnic minority are more likely to face abuse, according to Kick It Out reporting statistics. Therefore, a tribunal may determine that this practice of staying silent puts players who share a racial origin (including the complainant) at a ‘particular disadvantage’.
‘Particular’ simply means that the disadvantage is collectively specific to individuals who share the protected characteristic (it does not mean that the disadvantage must be significant or severe). The threshold for the complainant’s ‘disadvantage’ is relatively low; the Equality and Human Rights Commission’s Employment Statutory Code of Practice provides: ‘It is enough that the worker can reasonably say that they would have preferred to be treated differently’.
For example, in Bessong v Pennine Care NHS Foundation Trust, the Employment Tribunal held that the NHS Trust’s failure to take steps to reinforce the message to staff to report incidents of racism contributed to non-white staff feeling unsupported and more likely to be the subject of racism.
3.Breach of health & safety obligations. The employer breaches their duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees. This includes a duty to protect employees’ mental wellbeing (including receiving abuse and threats relating to their work, for example, performance on the field).
Employers must identify risks and determine how to prevent and mitigate risks to the health and safety of their employees while at work. Breach of the health and safety legislation is usually a matter for enforcement by the Health and Safety Executive, although an employee may also be able to claim where they have suffered personal injury – which, of course, includes mental health conditions.
4.Constructive dismissal. Employers owe their employees a number of implied duties, including a duty of trust and confidence. It is possible, therefore, that an employee might resign in response to an employer’s inaction in the face of online abuse (on the basis that it amounts to a repudiatory breach of the contract) and claim constructive dismissal. The merits of such a claim would depend on the specific circumstances of each case.
In a successful case, broadly speaking, the employee would be entitled to receive their pay and contractual benefits for the duration of their notice period. Given footballers are engaged on fixed-term contracts, where is no earlier right for the employer to terminate for convenience, their ‘notice period’ would be the remainder of the fixed term, which could be substantial.
Legal obligations aside, clearly, football clubs should be taking a pro-active approach to protecting their employees and standing alongside them in the face of online abuse. In addition, if a club can demonstrate that they are actively engaged in trying to improve the position and eradicate online abuse it makes it very unlikely that there will be a breach of the legal obligations set out above.
Online abuse can be tackled on many fronts, from demanding social media platforms do more, to educating the community (including educating children in schools using the Premier League’s Primary Stars diversity toolkit, and educating abusers through, for example, Kick It Out’s one-on-one fan education programme). As Kick It Out explains, ‘… banning people from stadiums and clubs will only go so far. To stop abuse happening in the first place, we need to shift people’s attitudes.’
Continuing to champion equality, diversity and inclusion is, of course, also of paramount importance. Many clubs have already signed the Football Leadership Diversity Code, but it’s important for clubs to not lose momentum on this, particularly given the fundamental role which football plays in society.
At Walker Morris we act as HR and employment law advisers to a number of Premier League and Football League clubs. This is often sensitive work and can include dealing with matters such as protecting against online abuse. If you require any advice or assistance on sports-employment matters, please contact Charlotte or Adam, who will be very happy to help.