In the case of Borg-Neal v Lloyds Banking Group, an Employee found to be unfairly dismissed after saying ‘the N-word’ at a racial awareness training session. In this article Senior Associate Solicitor Debbie Coyne examines the facts of the case and its implications for employers.
What were the facts of the case?
The Claimant was a long-standing employee at Lloyds Bank (the ‘Bank’) with a clean disciplinary record. He worked as a manager and had dyslexia.
The Bank launched a Race Action Plan to instil an anti-discriminatory culture in the workplace. Part of this plan was to roll out Equality and Diversity training and implement a zero-tolerance policy to discriminatory language/behaviour.
One of the training sessions the Claimant attended was about ‘intent vs effect’. In this session, the Claimant asked how he should handle a situation where he heard someone from an ethnic minority use a word which would be considered offensive if used by someone outside that minority. His thinking being rap music.
The Claimant elaborated that, “The most common example being use of the N word in the black community.” The Claimant used the full word instead of the abbreviated version of the word.
As a result of using this racist term, the Bank began a disciplinary process against the Claimant.
The Bank accepted that the Claimant did not intend to cause any harm and the question itself was valid. It considered that the Claimant should have known better than to use the full world in a professional environment and should have realised it would have caused harm. In this case, the trainer had been off work for 4 -5 days because of the Claimant’s comment. Due to the above reasons, the Bank dismissed the Claimant on the grounds of gross misconduct.
The Claimant brought claims for unfair dismissal and disability discrimination.
What was the judgement?
The Tribunal upheld the Claimant’s claim that he had been unfairly dismissed and discriminated against by something arising out of his disability.
The Tribunal accepted that the N word should never be used in a professional environment and that even if no malice was intended, the word is likely to be painful and shocking for staff, particularly for black people.
However, the Tribunal considered that the dismissal was not reasonable considering the Claimant’s dyslexia and the context in which the comment was made. The purpose behind the training session was to explore intention vs effect and for the employees to learn. The Claimant had asked the question as he genuinely wanted to know the answer, rather than a guise to say the racial term or offend others.
In these circumstances, it was held that no reasonable employer would have dismissed the Claimant. The Tribunal took into account the expert medical evidence on dyslexia as a contributory factor for his unfair dismissal.
It also held that the Claimant was dismissed because of something arising out of his dyslexia. Medical evidence showed the Claimant’s dyslexia can lead him to ‘spurt things out’ as he loses his train of thought when concentrating on more complex questions. Therefore, his misjudged use of language was consistent with his disability.
The Claimant’s claim for direct race discrimination was not upheld. The Claimant argued that the fact that he was white was a material reason for his dismissal and that a hypothetical black comparator would have been treated differently in the same circumstances.
The Tribunal commented that it did not work to flip the ethnicity of the individuals as there is no equally racial offensive term to white people which is backed by a history of oppression. Instead, the Tribunal’s starting point was whether the fact the Claimant was white influenced the Bank’s decision to dismiss. As the Tribunal did not find evidence of this, the claim failed.
Advice to Employers
This judgement was very much dependent on the facts of the case. The Tribunal made it clear at the outset that the judgement should not be misunderstood. The Tribunal’s decision in this case does not mean that it was reasonable for the Claimant to use the N word in a professional context or for the Bank to adopt a zero-tolerance approach to discrimination.
Employers with a zero-tolerance policy on offensive language are still obliged to carry out a full investigation into the alleged incident. Employers should consider any mitigating factors such as the context the language was used, any disability related element, length of service and prior disciplinary record when deciding the outcome.
An employer should also consider whether a lesser offence is more appropriate. In this case, the Tribunal held that it was not proportionate to dismiss the employee as the Bank could have upheld their zero-tolerance approach by issuing a warning or by offering further training to the Claimant to achieve their policy and condone the language. This suggests it is possible for an organisation to show a zero tolerance of discrimination, without dismissal being the automatic sanction.
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