Last week, we looked at an agent who was awarded over £1.5million for a whistleblower claim! For those of you that missed last week’s update, you can find it here.
This week we look at a case that made the national news which asks the question; is saying the ‘N’- word during a racism awareness training session, fair grounds for dismissal?
The Claimant, Carl Borg-Neal, was a manager and long-standing employee with the Respondent, Lloyds Banking Group PLC. As part of an initiative the Respondent was conducting Race Education Training to over 72,000 members of staff, with the goal to reduce discriminatory conduct and raise awareness across the business. The Claimant, who suffers from dyslexia (which is not only a difficulty with written words but can also affect a person’s speech and interpretation of social cues), felt relieved after being told that the training was a safe space which would allow the participants to be clumsy in the interest of improving their understanding of the issues. During a discussion around a person’s intention versus the effect of their words, the Claimant asked what an appropriate response would be should an ethnic minority member of staff use a phrase that would be considered offensive by someone who did not belong to that minority. This was clarified when he stated: ‘The most common example being the use of N***** in the black community’. The trainer made it immediately apparent that they found the question offensive and closed down the question without providing an answer. The response was so negative at the time that multiple other members of staff complained about the treatment on the feedback forms.
The company who provided the training, notified the Respondent who then conducted an investigation. While there were factual issues with the investigation, including a misquoting of the statement made to make the Claimant’s question seem more offensive than it was and the deletion of the recording which evidenced what occurred in the training session, which made the decision to dismiss the Claimant for Gross Misconduct on 17 December 2021. The Claimant submitted an appeal which was ultimately rejected on 15 August 2022, almost 8 months later. It is worth mentioning that the training provider in question took a week off work in response to the situation.
The Employment Tribunal, while finding that the use of offensive slurs would be a substantial reason which could lead to dismissal, they did not find that it was within the range of reasonable responses. While determining that a reasonable employer could have viewed the use of such language as misconduct, the factual context of when and how it was said could not reasonably have been found to be gross misconduct or misconduct justifying a dismissal. The Tribunal were also not impressed with the standard and quality of the investigation conducted by the bank. Some witnesses were interviewed 4 months after the fact, with the two other trainers not interviewed at all.
Midway through the proceedings the Claimant brought claims of race discrimination, stating that he was dismissed due to his race and that had a person not of his race or ethnic background have made the same comment they would not have been dismissed. However, the Tribunal were not convinced and dismissed this ground.
In considering the Claimant’s disability, the Tribunal considered evidence from an expert witness which stated that a person with dyslexia is likely to ‘blurt out’ words in their head before considering them properly or formulating their sentences to ensure they do not lose their train of thought. The Tribunal found that the Claimant was formulating a complex question with an image in his mind of rap music which includes the offensive word when he was asking the question, which led to the word being spoken aloud. The Tribunal found that they relied too heavily on a layman’s understanding of dyslexia and failed to take the reasonable steps to understand his condition during the investigation process. Therefore, his claim for disability discrimination was upheld.
I think it is important to draw the distinction between what the Tribunal was saying and the headlines that have been banded around in the wake of the decision. The Judge was very particular in stating that the Respondent was entirely reasonable in finding the word offensive and in stressing that in almost any other context such language could reasonably be seen as misconduct. However, given the context of where the comment was said, the intention of the Claimant when asking the question, and the apologetic response after the fact all resulted in the finding that dismissal was not an outcome a reasonable employer would deploy.
Non-discrimination training is important, especially to businesses which deal with the general public regularly. However, setting the boundaries for conversations is important and ensuring that investigations properly examine the whole series of events rather than a singular fact in a vacuum is important when dealing with claims such as these.