Earlier this month it was alleged in the press that the Football Association (“the FA”) had paid Eniola Aluko, a member of the national team, £80,000 as ‘hush money’ to keep confidential a bullying complaint she had previously lodged with the FA against Mark Sampson, manager of England’s women’s football team. The allegations, centred on harassment and victimisation, include Sampson supposedly making remarks with “racial and prejudicial connotations” about Aluko and her teammates.
Aluko’s complaint included allegations that Sampson asked a mixed race player how many times she had been in trouble with the police and that he told Aluko to make sure her Nigerian relatives did not bring Ebola to a game at Wembley.
It is important to stress that the allegations are denied by Mark Sampson and the FA states that the settlement was entered into ahead of the summer’s European Championships in order to avoid disruption to the team’s preparations. The FA also instructed an independent third party to investigate the allegations at the time they were made.
Whilst it is not accepted that the comments were made, this high profile case does serve as a useful reminder to employers of the risk that harassment allegations can arise even if there has been no intention to offend.
Race is one of the nine “protected characteristics” covered by the Equality Act 2010, which means it is unlawful to discriminate on grounds of colour, nationality, and ethnic or national origin.
Racial harassment can be proved if an individual or an employer engages in unwanted conduct related to race and that conduct has the purpose or effect of violating dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.
The law recognises that harassment can arise even when the perpetrator has no intention to upset or cause harm. Unwitting discrimination can therefore occur when comments are made relating to a protected characteristic, such as race, which offend somebody present. This is the case even if the person making the comment believed that everybody was in on the “joke” and that no complaints were raised at the time.
Employers should ensure that all of its employees are aware of the risks of inappropriate comments in the office and action is taken as and when such issues occur (even if a complaint is not received). Turning a blind eye to inappropriate office “banter” can easily lead to expensive tribunal proceedings.