SHADES OF GREY IN RACIAL SLUR CASE
Surely, if an employer dismisses an employee for using the 'N' word at work, that dismissal will be fair, right?
Not necessarily, as we saw in the case in Mr Borg-Neal and Lloyds Banking Group plc – a case which is now being widely publicised because of the 6-figure sum awarded to Borg-Neal when the Tribunal decided that his dismissal was both unfair and discriminatory.
On 17 December 2021, Mr Carl-Borg Neal was dismissed from the bank for gross misconduct. At the time, he had a clean disciplinary record and 30 years' service.
During a race education training session in July 2021, Mr Borg-Neal had asked the course trainer how he should handle a situation where he had heard someone from an ethnic minority use a word that might be considered offensive if used by someone not from that ethnic minority group. He gave the example of rap music, saying “The most common example being use of the N-word in the black community”. However, he used the full word rather than the abbreviation.
“After hearing evidence over 5 days in June 2023, the London Central Employment Tribunal decided that the bank’s decision to dismiss Borg-Neal was unfair. Specifically, the Tribunal decided that no reasonable employer would have dismissed Borg-Neal in the same circumstances.”
Following an investigation and disciplinary process, Mr Borg-Neal was summarily dismissed. He brought claims for unfair dismissal, together with discrimination complaints.
After hearing evidence over 5 days in June 2023, the London Central Employment Tribunal decided that the bank’s decision to dismiss Borg-Neal was unfair. Specifically, the Tribunal decided that no reasonable employer would have dismissed Borg-Neal in the same circumstances.
The Tribunal also found the bank’s decision to dismiss was discriminatory. The Tribunal were satisfied that Borg-Neal’s dyslexia had been a strong factor in how he expressed himself on the day of the training, and as such, the bank had to justify the dismissal as a proportionate means of achieving a legitimate aim (in this case, the aim being the furthering of the Bank’s anti-racist education programme and race action plan, and of making it clear that racist language was unacceptable.)
The Tribunal found that dismissal was not a proportionate means of achieving the aim as there were less discriminatory options available (such as issuing a warning and providing further training).
In a Remedy Judgment that was sent to the parties on 19 December 2023, Mr Borg Neal was awarded almost £310,000 plus interest, which will be grossed up accordingly.
In January's 'HR Matters', we will be exploring the Tribunal's reasoning in the case, highlighting the findings which led to the outcome, and discussing the key takeaways.
Watch this space!