Diversity climbs the agenda in sport

From the players to the supporters to the staff to the team mascot, sport has the ability to bring people together from all walks of life and celebrate the diversity in our society. But just talking about it isn’t enough. Here, we take a look at why it’s important, key steps to promote the right culture, and why equality and diversity is climbing the agenda.

Why it matters

First and foremost, it matters because everyone deserves to be treated equally, regardless of their race, religion, sex or other characteristics.

Secondly, it’s the law! The Equality Act 2010 protects those with a ‘protected characteristic’ (or, in some cases, those perceived to have one or associated to someone with one) against discrimination. The protected characteristics are: age, race, gender reassignment, marriage & civil partnership, pregnancy & maternity, disability, religion or belief, sex and sexual orientation. But these characteristics can cover a wider range of people than you might think, and the protection doesn’t only apply to employees; others such as job applicants and service users are also protected.

Thirdly, there is an obvious link to reputation as we’ve seen from examples and movements such as #MeToo, Black Lives Matter and the USA Gymnastics scandal.

Finally, this subject is high on the agenda for Sport England and is linked to funding.

However, it’s not all about the legal and commercial stuff. Being part of a diverse and inclusive group can of course boost morale, enhance relationships and lead to greater creativity, innovation, understanding, performance and productivity. This can go a long way towards attracting and retaining talent.

Discrimination

Discrimination can take many forms and goes beyond picking on someone or treating them less favourably because they have a protected characteristic.

Quite often it is not the intention of the perpetrator to cause offence, but a nasty joke or ‘banter’ might still constitute discrimination if it has a certain adverse effect on the person on the receiving end. Even a one-off comment might be enough.

Discrimination can also take other forms. For example, a provision, criterion or practice applied to all but which has a disproportionate adverse effect on people with a certain protected characteristic can be discriminatory where it cannot be justified.

We are seeing the headlines cover this subject more and more. A recent example is the participation of transgender people in competitive sport. Earlier this month, Caitlyn Jenner said publicly that she is opposed to trans females participating in women’s sports which sparked a big debate. Under the Equality Act, sporting bodies are permitted to divide the sexes for competitive activities where the physical strength, stamina or physique of one sex would put them at a disadvantage compared to the other. This then becomes more complex for participants who identify as non-binary or are transgender, particularly as gender reassignment is a protected characteristic. While the Gender Recognition Act 2004 permits certain restrictions around participation in this context if necessary to ensure fair competition or the safety of competitors, this is an incredibly complex and controversial area. Most governing bodies will have guidance available on this topic and sports clubs should check their relevant governing body’s website for more details.

Consequences

In the employment context, if an employee discriminates, they could be personally liable and their employer could also be vicariously liable for that employee’s actions.

There can be hefty financial consequences by way of compensation payments. In the employment context, compensation can be unlimited and there is also reputational damage to think about as Employment Tribunal proceedings are public and details can be found on a public online database.  

In 2016, Eva Carneiro was believed to have received a settlement payment in excess of £1.2 million after she raised claims against Chelsea Football Club and Jose Mourinho, including sex discrimination claims. The confidential settlement amount was agreed just before she was due to give evidence in Tribunal, showing just how potentially damaging her evidence was likely to be.

Key steps

• Implement/review your equality and diversity policies
• Review and refresh your equality and diversity training – stale training is not good enough. We discussed stale training and its consequences here
• Ensure open, effective and supportive communication channels for concerns and complaints
• Ensure everyone is aware of their responsibilities
• Lead by example, take concerns seriously, don’t overlook issues or bury your head in the sand, speak out
• Seek advice if uncertain

Steps like these could help an organisation establish a defence against being variously liable for an employee’s discriminatory acts. It would need to show that it took all reasonable steps to prevent the discrimination from taking place. This is a high bar, so the more you do and the sooner you do it, the better.

Equality, diversity and inclusion are climbing the agenda – everyone has a part to play.

If your club could benefit from up-to-date equality and diversity training and/or policies, please contact Tom Barnard or Laura Ludlam.

By Laura Ludlam and Elizabeth Mutter