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Protecting your rights Ryan Clement

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Boundaries are not drawn to keep something out. But to protect what's in

Ryan Clement Protecter of Boundaries

ONE WOULD HAVE to have been on planet Neptune to have been unaware of the many serious allegations of racial harassment made by the cricketer Azeem Rafiq against Yorkshire County Cricket Club. I was waiting for the dust to settle before contributing to the discussion.

However, after the recent, fresh, allegations of racism made by cricketers Zoheb Sharif, Maurice Chambersand Jahid Ahmed, I thought the dust will only be truly settled once the subject matter of alleged racial harassment was surplus to our cultural and societal requirements. As we are currently no nearer to those than I am to Neptune, I pen this short observation now!

Mr Rafiq’s testimony before the Digital, Cultural, Media and Sport Committee on the anniversary of my mother’s entering this world touched me on many levels, no more so than when he recalled, “I carried my son from the hospital to the graveyard.”

As my late mother looked down on her son and grandson as she rested in peace and I, in turn, looked at my son soon to enter his teens, it was hard to maintain a dry eye whilst listening to what Mr Rafiq had said before the Committee.

I doubt if anyone could have failed to be moved.  Then, we turn to the controversial point that attracted so much media attention; the point on which he was invited to testify. Racial harassment! Or, to give a balanced view in the spirit of free speech, Banter!

Due to my profession, I am occasionally limited to what I can say or write when it comes to some matters of current public concern or interest. In consequence, I restrained myself from entering the public debate on the age-old issue of harassment versus banter.

Mr Rafiq is unequivocal on the matter: “to make one thing very clear, [….] racism is not banter.”  

I agree.  On the same afternoon, I was on my way to collect my son from school and was, as I usually do, listening to Mariella Frostrup’s excellent radio show.  She interviewed the former England cricketer, Monty Panesar, who, among other things, expressed the bravery of Mr Rafiq in speaking out and confirmed that he had not himself experienced racism in the game.

I later saw an interview with Mr Panesar, during which he reconfirmed his experience. On both occasions he was asked if he had. I confess that the questions put to Mr Panesar had me thinking about their relevance to the allegations made by Mr Rafiq.

I understand the value to many on a superficial level as to the connection.  But think about it. What is the relevance of a question to person (P) whether they have experienced discrimination or racism to an allegation made by person (R) that they have?

Attractive as P’s answer may be to some, if not many, P’s answers neither adds or limits any weight to the veracity or credibility of the allegations made by R. P’s answer has as much relevance as a claimant to a race claim, calling witnesses to say that they, too, had been discriminated against by the same respondent or that respondent calling witnesses saying that they, themselves, hadn’t!

Paradoxically to some, is the asking of the banterer (alleged harasser) to convince the arbiter or judge or tribunal or court why their conduct was not unwanted by the alleged harassed!


That also leads me to another inquiry about which I have written many times.  Under the Equality Act 2010, for there to be harassment the unwanted conduct in question must be related to a protected characteristic, namely age, disability, gender reassignment, race, religion or belief, sex and or sexual orientation.

It is for the harassed to elect and say whether they feel harassed.  In other words, the unwanted conduct is a statement that it is unwanted by them and them only!

They cannot elect to say it is unwanted by another person; that would be a call for the other person to make.

As I wrote in my book, Put Simply in Black and White, “Race Relations in Employment Law, “… if two or more people witness the same act and some find it unwanted and some are fine with it i.e. the act is not unwanted.

Does the latter override the former? In other words, does the mere fact that some do not find the act unwanted mean that the same act cannot or should not be deemed unwanted by others?

Some would recognise this as banter versus harassment.  One person’s banter is another person’s harassment” (para. 2.32-2.34).  On this basis, “it is down to the individual whether the act is wanted or unwanted,” and it is not down to another person.

For sure, some people will have experienced harassment and choose whether to state it publicly, and vice versa.

I simply hope that one day, as Mr Panesar claims, we could ALL say we have not experienced racial harassment or, for that matter, any form of unlawful harassment.

If my about-to-be-teenaged son, with most of his years ahead of him, could be part of such a movement who could testify and claim openly that harassment has been knocked “over the boundaries for six” into the bin of history, the dust would then be well and truly settled!

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