SHADES OF GREY IN RACIAL SLUR CASE UPDATE
We posted recently about Mr Borg-Neal, the individual who secured a 6-figure compensation award against Lloyds Banking Group plc when the Tribunal decided he had been unfairly dismissed for using the ‘N’ word.
In this feature we look a bit more closely at the Tribunal’s reasoning and set out some key takeaways.
By way of a recap, 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.
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.
So what made the dismissal unfair?
When assessing the reasonableness of a dismissal, the Tribunal will consider the following 3 questions:
(1) did the employer genuinely believe the employee was guilty of the alleged misconduct?
(2) did the employer hold that belief on reasonable grounds?
(3) did the employer carry out a proper and adequate investigation?
The overarching question being ‘was the dismissal within the band of reasonable responses open to a reasonable employer?’
In this case, the Bank persuaded the Tribunal that it genuinely believed Mr Borg-Neal was guilty of gross misconduct. However, the Tribunal found that this belief was unreasonably held.
In other words, the Tribunal decided that no reasonable employer would consider Mr Borg-Neal’s use of the ‘N’ word, in the particular of circumstances of this case, to be gross misconduct.
In reaching that view, the Tribunal considered the following facts:
The incident had taken place during an online training session delivered by an external agency and attended by about 100 professional colleagues, including a few from outside the immediate organisation.
Mr Borg-Neal said the word only once, immediately apologised and attended the rest of the session quietly.
The Bank accepted that he had not used the word as a term of abuse or as a descriptor. Rather, he had used the word simply to ask a question about how to handle a situation when unacceptable language was being used.
Anonymous attendee feedback from the course indicated that he had used an offensive and inappropriate word, but that no malice was intended.
The course trainer had read out an opening script at the start of the training which warned against abusive language, however the claimant had not heard the full script because he, like many others, was having trouble joining at the beginning.
The Bank placed a lot of weight on the distressing effect of the word being used on the black people in the room, however neither the course trainer, or any of the attendees, directly complained to the Bank about the use of the word (the complaint was raised by one of the trainer’s colleagues, on her behalf, and this individual had not themselves been at the session).
The Bank gave weight to the assertion by the training provider that the trainer had taken four or five days off work after the incident. However, there was evidence that other, non-related, factors may have contributed to her absence.
Two other trainers who had been present for the session made no direct complaint and were not interviewed by the Bank (a factor which led, along with the bank’s delay in investigating the matter, to the Tribunal concluding that the bank had also failed to conduct a reasonable investigation).
Sanction of dismissal was unreasonable
The Bank relied on its stance as a zero-tolerance employer as justification for its decision to dismiss Mr Borg-Neal. The dismissing manager told the Tribunal that he had felt that not dismissing Mr Borg-Neal would amount to condoning his use of the word.
The Tribunal held that this was not a reasonable view given that Mr Borg-Neal had immediately and repeatedly apologised. He had also offered to apologise to the trainer directly. He had been trying to learn about the topic and, following the incident, said he was open to attending further training. He consistently accepted that he should not have used the word.
Why was the dismissal discriminatory?
The evidence showed that, on the balance of probabilities, Mr Borg-Neal’s dyslexia was a strong causal factor for why he used the full word without finding a way to avoid it. Apparently, this was because his condition could cause him to lose concentration and, on occasion, to blurt things out.
Whilst the Bank had legitimate aims in dismissing Mr Borg-Neal (i.e. to make it clear that this language was not unacceptable and not tolerated, and to further its anti-racist education programme) dismissing Mr Borg-Neal was not a proportionate means of achieving that aim. In this case, the Bank could have instead issued a warning and required him to undergo further training.
Comment
The Tribunal were very keen to stress that when considering cases of this nature, context is everything. They also made it clear that it was reasonable for the Bank to take the view that the word used by Mr Borg-Neal was appalling and should never be used in a professional context. However, whether Mr Borg-Neal should have been dismissed for having used the word was a separate question.
The key takeaway is to take a step back when an employee does something which, on the fact of it, is clearly gross misconduct, and to ensure that an investigation into the full circumstances is carried out efficiently and thoroughly.
This case highlighted that it will not always be a defence for an employer to say that it takes a ‘zero tolerance’ approach to a particular type of conduct, and particularly not where that conduct may have arisen as a result of a disability. Thought needs to be given to the intention behind the particular conduct, and if other sanctions (short of dismissal), would achieve the desired outcome. Where a disability is involved, it is always advisable to consider (with the benefit of medical evidence) whether the disability may have been a contributory factor in the misconduct and, if so, whether dismissal can be justified nonetheless.