CASE UPDATE: Vaultex UK Ltd v Bialas Unfair Dismissal: Band of Reasonable Responses

The EAT has held that a decision to dismiss an employee for posting a racist ‘joke’ on his employer’s intranet did not fall outside the band of reasonable responses and was fair.

Mr Bialas posted the following joke to be viewed by colleagues:

“Do not be racist; be like Mario. He’s an Italian plumber, who was made by the Japanese, speaks English, looks like a Mexican, jumps like a black man, and grabs coins like a Jew!"

The post was reported for racism a few minutes after it was created. During a disciplinary investigation and hearing into the conduct, Mr Bialas offered profuse apologies and asked for retraining. He maintained that he did not realise that the post was racist.

The chair of the disciplinary hearing referred to the company’s "zero tolerance" policy in respect of discriminatory language. He took account of Mr Bialas's long service, exemplary record and his remorse. However, he felt that a written warning would conflict with the Company’s zero tolerance approach, and its commitment to equality, diversity and inclusion. Mr Bialas was dismissed and brought a claim for unfair dismissal.

The tribunal held that the claimant had been unfairly dismissed. However, the Respondent appealed and the EAT substituted a finding of fair dismissal on the following basis

• The fact that the Company had the option of imposing some lesser sanction (such as a final written warning) did not mean that the option of dismissing was outside the band of reasonable responses.
• The tribunal's reasoning suggested that, as long as some sanction was imposed, this would not undermine the employer's policy. This supported the contention that the tribunal did not consider whether the disciplinary chair was reasonably entitled to take the view that to give only a warning would send a wrong signal in relation to the employer's commitment to this policy.
• It appeared that the tribunal had not analysed the disciplining officer’s thought process when considering the apology. Rather, the decision read as though it was the tribunal reflecting on what it made of what went through Mr Bialas's mind when posting the offensive words. In other words, it had applied its own view.
• In a case where the conduct is something for which a reasonable employer could, in principle, dismiss, but the employee has relied on their apology, expression of remorse or a willingness to retrain in support of their plea for a lesser sanction, then it may be open to a tribunal to find that, if these things were not fairly considered by the employer, the fairness of the dismissal is affected. However, that does not mean that an employer which is found to have considered such matters will necessarily act unfairly if, having taken them into account, it nevertheless decides to dismiss.
• The "zero-tolerance" policy made it clear that conduct of this sort was considered to be potentially so serious that it could result in dismissal for a first offence. In circumstances where the post was visible to the entire workforce, it was not reasonably open to the tribunal to conclude that Mr Bialas's prior clean record of long service meant that dismissal was outside the band of reasonable responses.

On Mr Bialas's state of mind, the tribunal should have considered whether, taking Mr Bialas's views into account, the disciplinary chair was entitled to take the view that this was conduct which warranted dismissal. It may still be open to an employer within the band of reasonable responses to dismiss for conduct which, though it is not believed to be malicious, is still reasonably considered to be seriously thoughtless or lacking in insight, negligent or reckless.