Claimant awarded circa £470,000 following successful discrimination and unfair dismissal claims

In the case of Borg-Neal v Lloyds Banking Group, the claimant worked as a manager. As part of its Race Action Plan, the claimant along with 700,000 other employees was invited to attend race education training.

During the training session, whilst the trainer was discussing intent v effect, the claimant asked how they should deal with a hypothetical situation – what if the claimant, a white male, heard someone from an ethnic minority use a word that could be considered offensive if used by another, not of that minority. The specific example they gave was the use of the ‘N’ word by the black community (the claimant later said that they were thinking of the words used in rap music). In the session, they used the full word. The claimant then apologised for using this word and did not say it again. Following the training session, such was the impact on the trainer that they felt they had to take a week off work.

Mr Borg-Neal was dismissed for using ‘the N-word’. The tribunal upheld his claims of unfair dismissal and disability discrimination on the grounds that his misuse of language was linked to his dyslexia, and dismissal was not in the range of reasonable responses.

Judgement
The ET made it clear in its judgment that it considered the respondent to have been entirely reasonable in its view that “(1) the full N word is an appalling word which should always be avoided in a professional environment; and (2) even if no malice was intended and the full word was used not as a term of abuse and not as a descriptor of people, nevertheless, simply hearing it said is likely to be intensely painful and shocking for black people…”.

However, this alone did not render the decision to dismiss in this case fair, as the question whether the claimant should have been dismissed for using the full word was a different question to whether or not they should have used it. In the ETs opinion, the respondent likely had the concern that failure to dismiss could be seen as the respondent condoning the use of the word by an employee.

Acknowledging that in many circumstances the above could be grounds for dismissal, on the facts of this case, the ET held that the decision to dismiss the claimant was not within the band of reasonable responses. This was based on the fact that the subject matter of the training session at the time the comment was made was exploring intention v effect. The claimant, in the view of the ET, did not ask this question in order to get the opportunity to use the offensive word “under the guise of an innocent question”. It was asked to deepen their knowledge and clarify an area of confusion. Indeed, the dismissing officer in this case referred to it as a “good question”. As a result, the ET held that the decision to dismiss was unfair. The respondents aim of sending a message of “zero-tolerance policy on any racial discrimination or use of racist language” could have been met with a formal sanction under the disciplinary procedure rather than dismissal.

On a final note, the claimant explained that the question that caused the offense may not have been worded appropriately due to their dyslexia. This had the effect of causing them to keep reformulating questions and spurting things out before losing their train of thought. As a result, the claimant would concentrate more on their complex thoughts than actually formulating questions and on the surrounding social cues. The ET therefore upheld that, on the balance of probabilities, that the claimant’s dyslexia was a strong factor in their use of the full word rather than finding another way to phrase the question.

The claimant was awarded compensation of £309,867.86 for future loss of earnings (including a 5% uplift for the Respondent’s failure to follow the Acas Code) - This amount was awarded on the tribunal’s estimate that it will take between one to two years for the claimant to return to work following poor mental health caused by his dismissal. At this point the claimant would be 61 and unlikely to secure a reasonably paid full-time position, which the tribunal took into consideration.

The claimant was also awarded £15,000 for injury to feelings, in respect of the claimant’s shock, hurt, humiliation and damage to his self-esteem as well as the loss of a job he loved.

Personal Injury and aggravated damages were also awarded.

This is an employment tribunal case, therefore it is not binding authority  and is only indicative of how a similar case might be treated. The Respondent has appealed the decision.

Takeaways

• This case is a reminder for employers of the importance of making decisions based on the facts and the context of the case at hand, rather than considering an act or omission  in isolation to what was happening at the time.
• Training on diversity, inclusion, equality and equity, is a vitally important tool for employers in meeting their obligations to create a discrimination free workplace. During those sessions, there is a possibility that strongly held beliefs are challenged, and individuals question the use of certain words of phrases in order to understand what they should or should not be saying. There may therefore be times where an incident similar to this case arises but taking a zero-tolerance stance does not always mean having to dismiss.
• When employers are running equality sessions or other training sessions,  it is also good practice to set parameters and expectations at the start of the session so that all those attending are clear on the boundaries of acceptable conduct within the context of the training.

The Employment Team  can  provide training for managers in businesses on such topics as equal opportunities and anti-harassment and bullying as well as other aspects of their roles e.g. disciplinary and grievance training.