Racism and harassment in footballPrint publication
Clubs and football authorities participated in a social media boycott from Friday 30 April 2021 to Monday 3 May 2021 in response to the ongoing racist abuse received by players from “fans” and other third parties on a regular basis online. One of the six commitments underpinning the Premier League’s “No Room for Racism” campaign is built on similar foundations, urging racism to be challenged and reported wherever it takes place – whether that be in the stadium, online, or elsewhere.
To what extent can clubs be liable for acts of harassment by third parties, and what measures should clubs have in place to ensure they are not liable for similar acts of their own employees?
Liability for third-party harassment
- The Equality Act 2010 previously imposed liability on an employer where a third party, such as a fan, harassed an employee during the course of their employment and the employer failed to take reasonably practicable steps to prevent it. The employer also had to know that the employee had been harassed on at least two previous occasions (not necessarily by the same third party). However, these provisions are no longer in force – although, in any event, it is doubtful that a club’s duties would have extended to intervening online (because the player may not be deemed to be acting in the course of their employment when on a social media platform).
- While a club could still technically be liable for its inaction in the face of third-party harassment through direct discrimination or harassment legislation, the player would have to show that the reason for the club’s inaction was the protected characteristic of the player. In other words, the club did not intervene because of the player’s race. This would be significantly more difficult to prove than liability under the repealed third-party harassment legislation.
- Notwithstanding this, it is in clubs’ interests from a player-relations and societal perspective to maintain a zero-tolerance approach to and condemn all forms of harassment faced by their players, whether in-person or online. For example, we have recently seen clubs creating online reporting forms to report incidents of discrimination and harassment, such as Manchester United’s “See Red” campaign.
Liability for the conduct of club employees
- Where an employee, in the course of their employment, discriminates against or harasses another person, the club will be liable for such conduct unless it is able to show that it took all reasonable steps to prevent the perpetrator from doing that act or anything of that description.
- The recent Employment Appeal Tribunal decision in Allay (UK) Ltd v Gehlen UKEAT/0031/20 confirms that the “all reasonable steps” defence is not easily established. If the club should reasonably have taken a further step to prevent the employee’s discriminatory/harassing conduct, the defence will fail. That is the case even if the further step would not have actually prevented the perpetrator from acting as they did.
- As a result, clubs must ensure that, among other things, all employees are provided with regular, substantial training on discrimination and harassment, and that robust policies are in place and regularly reviewed which emphasise the club’s zero-tolerance stance on such conduct.
- Many employers are going further than this and implementing unconscious bias training programmes – which is part of a wider effort to drive diversity in the world of football and beyond.
- All supervisors should be trained on effectively spotting and dealing with harassment in the workplace and promoting equal opportunities.