An employment tribunal has recently considered whether an employee who used an offensive racial term during a race awareness training session had been unfairly dismissed.
Borg-Neal v Lloyds Banking Group PLC, ET 2202667/2022
Facts of the case
The claimant was a long-standing employee of Lloyds Banking Group (LBG), employed in a managerial position. In July 2021, he attended a remote training session for line managers as part of LBG's Race Action Plan, delivered by an external provider.
During the session, the claimant asked how a line manager should handle the situation if a person from an ethnic minority used a word that would be considered offensive if used by someone not within that ethnic minority. He gave the example of someone in the "black community" using the 'N word' (the claimant used the full word).
After the session, the trainer reported the claimant's use of language to LBG. Following an investigation, LBG decided to take disciplinary action against the claimant. It found that whilst he had not intended to cause hurt or offence in using the word, he should have known better than to use the full word in a professional environment. Although he had apologised and not repeated the word, he should have known that it could have a serious impact (which LBG found it had done on the trainer). The claimant was dismissed for gross misconduct, and his appeal against the decision to dismiss was rejected by LBG. He brought tribunal claims for unfair dismissal, race discrimination and discrimination arising from disability (due to his dyslexia).
Employment tribunal decision
The claims for unfair dismissal and disability discrimination were upheld by the employment tribunal. It found the claimant's actions in using the 'N word' were not gross misconduct, taking into account the context. His question was relevant and well-intentioned, and he had immediately apologised. It was not used in an abusive manner but to ask how to deal with a specific situation. Importantly, although the session had started with a warning about use of language, the claimant (along with other participants) had been late joining and had not heard the warning. The tribunal also expressed concerns about the evidence relied on by LBG during the disciplinary process to demonstrate the distressing effect of the language on those present.
The tribunal held that the bank's investigation into the incident was unreasonable, and it did not have reasonable grounds to consider the claimant's actions to amount to gross misconduct. The sanction of dismissal was also unreasonable. The claimant had repeatedly apologised for his use of the language and had offered to go on further training, consistently demonstrating that he had learnt from his actions.
The tribunal held that the claimant's dyslexia was a strong factor in how he expressed himself during the session and in using the full word rather than finding a way to avoid it. It found that his dismissal was discrimination arising from disability.
The Birketts view
This decision is a first-instance tribunal decision, meaning that it is not binding on other tribunals. It is, however, a good illustration of how a tribunal will tackle a tricky and sensitive area in practice. The context of the comment was critical to the outcome of the case.
It is not uncommon for individuals attending training sessions to express views that do not align with an organisation's values. It is always advisable in sessions relating to diversity, equality and inclusion to make it clear at the outset what is (and isn't) regarded as acceptable. In circumstances such as this one, however, where the question posed was genuine and well-intentioned, and the employee has expressed genuine remorse, it was clearly disproportionate to dismiss.
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