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Context is key before dismissing an employee for using offensive word

Context is key before dismissing an employee for using offensive word
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Peninsula Team, Peninsula Team

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Whether dismissing an employee for using an offensive word was fair was the question the Employment Tribunal (ET) had to consider in Borg-Neal v Lloyds Banking Group.

 What happened?

 During a race education 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. In the session, they used the full word. Following the training session, such was the impact on the trainer that they felt they had to take a week off work.

 The claimant explained that they had been told the session was a safe space, and that their question was asked to further their understanding, not to cause offence.

 Whilst it was accepted that the claimant had not intended to cause any hurt and without malice, it was held that they should have known better. The claimant should have realised that the use of the full word in a professional environment could have a serious impact. The claimant was dismissed for gross misconduct.

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 At the Employment Tribunal

 The claimant brought claims including unfair dismissal and disability discrimination.

 The ET considered the respondent to have been entirely reasonable in its view that the word used was appalling and that simply hearing it is likely to be intensely painful and shocking.

 However, this alone did not render the decision to dismiss in this case fair. The question of whether the claimant should have been dismissed for using the full word was a different question to whether they should have used it.

The ET held that the decision to dismiss the claimant was not within the band of reasonable responses because 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 in the guise of an innocent question but was asked to deepen their knowledge and for clarity. Indeed, the dismissing officer in this case referred to it as a “good question”. The ET found that on the balance of probabilities, 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 ET held that the decision to dismiss was unfair. The respondent’s aim of sending a message of a “zero-tolerance policy on any racial discrimination or use of racist language” could have been met with a formal sanction rather than dismissal.

Remedy hearing

In the remedy hearing, the claimant was awarded £309,867.86. This included a £15,000 injury to feelings award for the shock, hurt, humiliation and damage to their self-esteem, and loss of a job they loved.

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 the use of a particular phrase or word in isolation to what was happening at the time. Where a comment is said without malice, and to further understanding of the subject matter being discussed, then dismissal may be a reaction that goes beyond what was reasonable in the circumstances.

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