Employee who used racial slur during EDI training was unfairly dismissed

Decision to dismiss was outside the band of reasonable responses.

A recent employment tribunal case provides useful insight into getting the right balance between condemning harmful behaviour and recognising the need for open discussion in the context of Equality, Diversity and Inclusivity training. 

Unfair dismissal and the “band of reasonable responses” 

When determining whether an employee has been unfairly dismissed, the tribunal must first ask whether the dismissal arose out of one of the ‘potentially fair reasons’ set out in the Employment Rights Act 1996, those being: 

-          Capability or qualifications

-          Conduct

-          Redundancy

-          Illegality

-          Some other substantial reason 

Once one of these reasons has been established, the tribunal will move on to consider whether the dismissal was unfair in all the circumstances. This is done with reference to the ‘band of reasonable responses’, i.e. did the employer’s decision to dismiss fall within one of the (potentially many) reasonable responses to the employee’s behaviour? If the answer to this question is no, then the employee has been unfairly dismissed. As can be seen from this test, the tribunal will not determine whether they themselves would have dismissed the employee, rather, was it reasonable for the employer to come to this determination? 

Where the conduct of the employee was to blame for their dismissal, the tribunal will set the scope of the ‘band of reasonable responses’ with reference to a further three questions: 

-          Did the employer genuinely believe the employee to be guilty of misconduct?

-          Did the employer have reasonable grounds for believing that the employee was guilty of that misconduct?

-          At the time it held that belief, had the employer carried out an investigation that could be regarded by a reasonable employer as adequate? 

Case details: Borg-Neal v Lloyds Banking Group Plc

Mr Borg-Neal was a long-standing employee with a clean disciplinary record. As part of the bank’s “Race Action Plan”, the claimant attended an online race education session run by a third-party provider and discussing “intent vs effect” of language. At the beginning of the session, the trainer made an opening statement setting out expectations for the session. Though the exact words said are not clear, the script prepared for trainers outlined that the session was an “opportunity to be clumsy” and “lean into [the] discomfort” which might be caused by discussions, but that attendees agreed to ensure they created a “safe space for our Black and Asian colleagues” and should not use any bad language. However, several attendees, including the claimant, had suffered a log-in error which had prevented them from hearing all of the statement. 

During the session, Mr Borg-Neal asked how he should respond if a person from an ethnic minority used a term which might be considered offensive if used by a person not in that minority. When the trainer did not respond immediately, he added “the most common example being use of the N word in the black community”, though the “N word” was used in full. 

The bank was subsequently told that the trainer had been absent from work for 4 – 5 days as a result of the incident. Though the bank accepted that the claimant intended no harm and that the question was innocent and valid, they believed he should have known better than to use the word in a professional setting, and that he should have realised the severe impact of the use of such a word. For these reasons, the bank dismissed Mr Borg-Neal for gross misconduct.  

“Context is everything”

The tribunal concluded that the bank did genuinely believe Mr Borg-Neal to be guilty of gross misconduct. However, they found that the bank did not have reasonable grounds to believe that the claimant was guilty of gross misconduct, and further that they had failed to conduct a reasonable investigation. 

The tribunal found that a reasonable employer could have considered the claimant’s use of the word to be misconduct (rather than gross misconduct), because it was inappropriate and because some euphemism should have been used. However, it concluded that a reasonable employer would not consider it to be gross misconduct. 

In the words of the employment judge, “context is everything” and in particular: 

-          The claimant said the word only once, and the tribunal was satisfied that it was used in the context of a genuine and honest question which related to the subject of the session: intent vs effect of language. 

-          Though the session began with the trainer giving a speech as to the purpose and rules of the session, several attendees including the claimant were unable to hear it due to technical problems. 

-          The bank did not have direct evidence from the trainer even though it placed considerable weight on the impact of the language on the trainer. The bank also failed to interview two other trainers who attended the session. 

“No reasonable employer could or would have dismissed the claimant in the particular circumstances”

The tribunal believed that two questions had been conflated during the bank’s disciplinary procedure: whether it was wrong to use the word, and whether the claimant should have been dismissed for using it. In fear of being perceived to condone Mr Borg-Neal’s conduct, the bank had failed to reach a sanction which fell within the band of reasonable responses of a reasonable employer.

The claimant’s repeated apologies, offer to apologise directly to the trainer, acknowledgement of wrongdoing and offer to accept a warning and undertake further training were enough to satisfy the tribunal that no reasonable employer would have dismissed Mr Borg-Neal for the use of the word in that particular context.

Comment 

It is important to stress at this stage that the decision outlined in this article is only a first-instance decision, and does not create any precedent for future cases. 

When deciding whether an employee has committed misconduct or gross misconduct, employers must remember the importance of context, and assess the merits and circumstances of each case individually. It is possible, and indeed necessary, for employers to take a strong stance with regards to equality and diversity without resorting to the automatic application of certain sanctions. Employers must also remember that the question of whether conduct is acceptable, and whether such conduct justifies dismissal, are separate questions. And whilst making such assessments, they must always remember that “context is everything”. 

The tribunal was concerned to make clear that “the full N word is an appalling word which should always be avoided in a professional environment” and “simply hearing it said is likely to be intensely painful and shocking for black people because it may well echo other discriminatory experiences in their lives and because of its history and derivation.” However, it commented that dismissal in this case appeared to be motivated by a desire for the employer not to be seen to condone use of the word, rather than a careful assessment of the circumstances of the case. 

The tribunal’s reasoning could also prove useful for employers in formulating their approach to structuring both their equality training sessions, and their policies relating to misconduct, particularly regarding the use of offensive discriminatory terms. This case is a pertinent reminder of the importance of setting out expectations for language use clearly, and clarifying what is really meant by a “safe space” in any particular context.