An employee who used offensive racial term during equality training session was found to be unfairly dismissed and discriminated against
Case overview
In Borg-Neal v Lloyds Banking Group ET/2202667/22, an employment tribunal found that a manager who used an offensive racial term in a race awareness training session had been unfairly dismissed and discriminated against because of something arising from his disability (dyslexia).
Facts of the case
Mr Borg-Neal had been employed by Lloyds Banking Group plc for a number of years and from 2011, was employed as a PDA Manager.
In July 2021, Mr Borg-Neal attended a remote training session called ‘Race Education for Line Managers’ by an external training company, APS Intelligence. This training followed a Race Action Plan launched by Lloyds in 2020.
Mr Borg-Neal had asked a question during the session about how a line manager should handle a situation if someone from an ethnic minority was heard using a word that might be considered offensive if it was used by someone not within that minority. Mr Borg-Neal went on to say, “The most common example being the use of the ‘N’ word in the black community”; however, he chose not to abbreviate the word and instead used the full word.
APS reported Mr Borg-Neal to Lloyds for his use of the word and, following an investigation, Lloyds decided to pursue formal disciplinary action. Lloyds concluded that whilst Mr BorgNeal had not intended to cause hurt or offence, he should have known better than to use the full word in a professional environment and realised the impact of doing so.
APS had told Lloyds that the trainer had been off work for 4-5 days following the session due to the impact of the “N” word being used.
Despite Mr Borg-Neal not repeating the word and apologising immediately, Lloyds dismissed Mr Borg-Neal for gross misconduct in December 2021.
Mr Borg-Neal’s subsequent appeal was rejected in August 2022 and he brought claims for unfair dismissal, direct race discrimination and discrimination arising from disability.
Decision
The Employment Tribunal upheld Mr Borg-Neal’s claim for unfair dismissal and discrimination arising from disability. The Tribunal found that Mr Borg-Neal’s misjudged use of language arose from his disability (dyslexia). It did however reject his claim for direct race discrimination.
The Tribunal found that dismissal was not justified, given that Lloyds could have resolved this situation in other ways; for example, by providing further training.
Comment
The anonymous feedback from the training session highlighted the differences in opinions and perceptions as to Lloyds’ decision to reprimand Mr Borg-Neal. Employers should therefore ensure that they implement a clear behavioural framework for training sessions for both trainers and participants.
The case also highlights the importance of employers considering conduct issues resulting from training sessions on a case-by-case basis and any disciplinary matters should be properly investigated. In this case, during the disciplinary investigation Lloyds did not interview the trainer who was alleged by APS to have been off work for 4 – 5 days following the incident and only interviewed a limited number of those present, even though 100 employees and three trainers had attended the session.
The tribunal’s judgment suggests that it is possible to demonstrate zero tolerance of discrimination (as in this case) without dismissal being an automatic sanction for a discrimination-related incident.
It should be noted that this decision is not binding on future tribunals.
If you have any questions relating to the implementation of workplace training or discrimination at work, please do not hesitate to contact a member of the AfterAthena team (part of the Napthens Group) who are able to offer 30 minutes of free advice to QCS members.
