Warning: this alert refers to offensive racist language
The facts
Mr Borg-Neal, who is dyslexic, was a long-standing employee of Lloyds Banking Group Plc. He had a clean disciplinary record. He attended a race education training session, which was led by an external trainer. During the session, Mr Borg-Neal asked the trainer how Mr Borg-Neal should respond in a situation where he heard someone from an ethnic minority use a word that might be considered offensive if the word was used by someone who was not from that ethnic minority. He was thinking partly about rap music. When he did not get an immediate response from the trainer, he added, "The most common example being use of the N word in the black community." Mr Borg-Neal used the full word rather than the abbreviation. The trainer reported Mr Borg-Neal's use of language to the bank, which conducted an investigation and decided to pursue a disciplinary process.
The bank accepted that Mr Borg-Neal did not intend to cause any hurt, that he asked the question with no malice, and that the question itself was valid. However, it considered that he should have known better than to use the full word in a professional environment and he should have realised that it could have a serious impact which (the bank said), in fact, it did: although Mr Borg-Neal had apologised immediately and had not repeated the word, the external training company told the bank that the trainer had taken a few days off work afterwards.
Mr Borg-Neal was dismissed for gross misconduct. He brought several claims against the bank, including claims for unfair dismissal, discrimination arising from a disability and direct race discrimination.
The tribunal upheld Mr Borg-Neal's claim of unfair dismissal.
The tribunal did not consider that the bank had reasonable grounds for believing that Mr Borg-Neal's actions were gross misconduct.
The below were key points in the tribunal's decision.
- The bank was entirely reasonable to hold the view that the word used by Mr Borg-Neal is an appalling word which should always be avoided in a professional environment.
- Even if no malice is intended and the word was not used as a term of abuse or a descriptor of people, simply hearing it is likely to be intensely painful and shocking for black people (and white people may also find its use uncomfortable).
- However, the context here was key.
- Mr Borg-Neal had apologised immediately and had not repeated the word.
- His question was relevant and well-intentioned.
- He had not used the word as a term of abuse, but in the context of a question about how to deal with unacceptable language.
- The training session had begun with a script which warned against the use of language, but Mr Borg-Neal (and several other participants) were delayed in joining the session and had not heard this.
The tribunal also held that the bank had not conducted a reasonable investigation. It had not spoken directly to the trainer herself. It had spoken to the founder of the training company, but they did not know the specifics, and their evidence suggested that Mr Borg-Neal's actions had not been the only reason that the trainer had taken time off work following the session.
The tribunal also upheld the disability discrimination claim. Mr Borg-Neal is dyslexic, and on occasion was unable to properly express what he is thinking because of his dyslexia. The tribunal found that, on the balance of probabilities, his dyslexia was a strong factor for how he expressed himself and using the full word rather than avoiding it. It did not consider that dismissing Mr Borg-Neal was a proportionate means of achieving the bank's legitimate aim of furthering its anti-racist education programme and race action plan.
The tribunal dismissed the claim of race discrimination on the basis that no substantial part of the reason for dismissal was that Mr Borg-Neal was white.
What does this mean for employers?
This is an employment tribunal claim, so it is not binding on future tribunals. It is, however, a reminder to employers that even if an employee's behaviour may, on the face of it, be entirely unacceptable, mitigating factors must be taken into account. This is particularly important where the employee has an underlying health condition that may be a disability.
