Dismissal of bank employee for use of offensive racial term during equality training session was unfair and discriminatory, Tribunal finds
An Employment Tribunal has found that a manager who used an offensive racial term during a training session had been unfairly dismissed and discriminated against because of something arising from his disability.
Background
In Borg-Neal v Lloyds Banking Group, Mr Borg-Neal was a manager at Lloyds Bank. During a race awareness training session, he asked how he should handle a situation where he heard someone use language that might be offensive if not used by someone within that ethnic minority. He added that "The most common example being the use of the 'N' word in the black community", using the full word.
Mr Borg-Neal was dismissed for gross misconduct following the incident. He brought claims for unfair dismissal, discrimination arising from disability and direct race discrimination.
Outcome
The Tribunal upheld Mr Borg-Neal's claims for unfair dismissal and discrimination arising from disability. It rejected his claim for direct race discrimination.
In respect of the fairness of Mr Borg-Neal's dismissal, the Tribunal found that context was everything. The Tribunal was careful to emphasise that it was not condoning Mr Borg-Neal's use of the language. However, it took into account the fact that he had used the word once and had immediately 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. The Bank therefore did not have reasonable grounds for believing that Mr Borg-Neal's actions were gross misconduct, although he could reasonably have been considered to have committed misconduct and sanctioned accordingly.
The Tribunal also upheld a claim for discrimination arising from disability. Mr Borg-Neal had dyslexia, and the Tribunal accepted that this led him to reformulate questions and 'spurt' things out before he lost his train of thought. His dyslexia was a strong factor contributing to how he expressed himself at the session.
Learning points
This is a fact-specific, first instance decision which is not binding on other tribunals. However it is an interesting decision which demonstrates to employers how they might demonstrate a zero-tolerance approach to offensive language without automatic recourse to dismissal if dismissal would not be considered reasonable in the circumstances.
When employers are running equality session such as the session Mr Borg-Neal attended, it is also good practice to set parameters and expectations at the start of the session, so that all those attending are clear on the boundaries of acceptable conduct within the context of the training.