An employment tribunal (‘ET’) has decided that a manager who used an offensive racial term in a race awareness training session was unfairly dismissed and subjected to discrimination because of something arising from his disability (dyslexia).
Facts
Mr Borg-Neal (‘BN’) was a manager at Lloyds Banking Group plc (‘the Bank’). During the training, BN asked the trainer how a line manager should react if they hear someone from an ethnic minority use a word that might be considered offensive if used by someone not within that minority. When he did not get an immediate response, he added, ‘The most common example being the use of the ‘N-word’ in the black community.’ However, BN used the full word.
Following an investigation and disciplinary process over BN using offensive language, the Bank dismissed him for gross misconduct. He brought claims against the Bank for, among other things, unfair dismissal, discrimination arising from disability and direct race discrimination.
Decision
The tribunal noted that a reasonable employer could take the view that BN’s use of language was misconduct. The word BN used was offensive and insulting to black people. It could also take the view that it ought not to have been used because it was distressing to others and unprofessional. However, whether it should have been used is a separate question from whether BN should have been dismissed for using it. The Bank did not have reasonable grounds for believing that BN had committed gross misconduct.
Why was the dismissal unfair and discriminatory?
The context was everything:
- BN had used the word once and had immediately and repeatedly apologised.
- His question was relevant and well-intentioned.
- He had not used the word as a term of abuse, but simply to ask how to deal with the use of unacceptable language.
- BN consistently demonstrated that he had learned from his actions.
- BN had dyslexia. It made him reformulate questions and burst things out before losing his train of thought, contributing to the way he expressed himself in the session.
The ET rejected a claim for direct race discrimination on the basis that no substantial part of the reason for dismissal was that BN was white.
What can we learn?
Clear rules
The training attendees were encouraged to ask awkward questions. Some were shocked by BN’s language, whilst others were uncomfortable that the trainer reprimanded him. If you wish to encourage participants to speak freely, ensure that you have a clear behavioural framework around these sessions, both for trainers and participants.
Case-by-case basis
Assess conduct issues arising from these sessions on a case-by-case basis. The Bank had a ‘zero-tolerance’ disciplinary policy. However, the tribunal observed that it was still necessary for any disciplinary matter to be investigated before deciding on a sanction. One can demonstrate zero tolerance of discrimination without dismissal being an automatic sanction for a discrimination-related incident.
Context
As an employer, you must consider the context when deciding what, if any, sanction to apply. BN was a long-serving employee with an unblemished record who did not intend to cause any hurt. He asked a question without malice and his question was valid.
Source: Borg-Neal v Lloyds Banking Group plc ET/2202667/22 (4 August 2023)
