In the recent case of Borg-Neal v Lloyds Bank Plc, the claimant attended a training session on race discrimination awareness for line managers. He asked a question during the session about how to handle a situation where the ‘N-word’ was used. He did not say ‘the N word’; he used the full word. He was dismissed for gross misconduct. The tribunal held that his dismissal was unfair. It acknowledged that the claimant’s use of language constituted misconduct but found that dismissal did not fall within the band of reasonable responses given the context in which the comment was made and the fact that the claimant immediately and repeatedly apologised for having used the full word.
His claim for discrimination arising from a disability also succeeded. He suffered from dyslexia and this was found to be a disability. He claimed that this condition had caused him to use the full word and prevented him from being able to call to mind an alternative phrase quickly.
This case illustrates the importance of employers looking at all the surrounding circumstances when deciding on the appropriate sanction in a disciplinary context. Employers have the band of reasonable responses to play with but the band is not ‘infinitely wide’. Behaviour needs to be viewed in context and sanctioned appropriately.
Find out how we can help. Our partner, Jon Dunkley, heads the Wollens specialist Employment Department. Contact him today for an informal chat, without obligation on 01271 342268 or via email at [email protected].
