Was an employer justified in dismissing an employee who used an offensive racial term during a race awareness training session?
In Borg-Neal v Lloyds Banking Group, Mr Borg-Neal, an employee of Lloyds, attended a remote “Race Education” training session. The training was arranged by the bank, but provided by an external company, APS Intelligence. During the session, the trainer encouraged participants to speak openly and ask any questions they might have. At one point, Mr Borg-Neal asked the trainer how a line manager should deal with a situation where an employee from an ethic minority uses language which, were it said by someone not from that ethnic minority group, might be considered offensive. Mr Borg-Neal, a white man, then gave the example of the “N word”, although he used the word in full.
The trainer reprimanded Mr Borg-Neal, who immediately and repeatedly apologised. After the session, APS reported the incident to Lloyds. The bank conducted an internal investigation. This included a discussion with the founder of APS, who alleged that the trainer had been off work for four to five days following the session. Ultimately, Lloyds dismissed Mr Borg-Neal for gross misconduct, on the basis that he should have known better than to use the world in a professional environment, where it should have been apparent that he might cause offence. Mr Borg-Neal brought claims to the employment tribunal for unfair dismissal, discrimination arising from disability, and direct race discrimination.
In reaching its decision, the employment tribunal first addressed whether Lloyds had been right to conclude that Mr Borg-Neal’s actions amounted to gross misconduct. While it accepted that the bank genuinely believed that Mr Borg-Neal had committed gross misconduct, the context of the case was relevant. Mr Borg-Neal had said the word only once, as part of a relevant and well-intentioned, albeit clumsily phrased, question. Upon being reprimanded, he had immediately apologised.
In addition, the evidence that the bank had relied upon in determining that Mr Borg-Neal’s actions had a distressing impact on those present at the session was also questionable. They had not heard any direct evidence from the trainer herself, who did not raise any complaint about the incident. Two other trainers who had been present also did not make any complaint, nor were they interviewed by the bank. Lloyds gave all of the weight to testimony of the founder of APS, who was not in attendance at the session, and his assertion that the trainer had taken time off afterwards. However, the founder had described the incident with Mr Borg-Neal as the “log that broke the camel’s back” – which would suggest that there were other reasons besides Mr Borg-Neal’s actions which contributed to her absence from work. The bank did not make any enquiries about these other reasons.
The tribunal held that, taking all of this into account, Lloyds did not have reasonable grounds to consider that Mr Borg-Neal had engaged in gross misconduct. It also held that the bank had not conducted a reasonable investigation, in failing to get evidence from the three trainers or to ask further questions of the founder in relation to the trainer’s absence. While a reasonable employer might take the view that Mr Borg-Neal ought not to have used the word, that was a different question from whether he should have been dismissed for using it. From the evidence available to the tribunal, it appeared that the manager who had dismissed Mr Borg-Neal had conflated the two questions and had also felt that not dismissing Mr Borg-Neal would amount to condoning his use of the word. The tribunal held that this was not a reasonable conclusion. Mr Borg-Neal had immediately and repeatedly apologised and had demonstrated that he had learned from his actions by requesting further race equality training and acknowledging that he had been wrong to use the word. No reasonable employer would have dismissed Mr Borg-Neal in those circumstances, and his dismissal was therefore unfair.
Mr Borg-Neal is dyslexic, and the tribunal found that because of this he, on occasion, struggled to properly express what he was thinking. It considered that his dyslexia was likely a strong factor in causing him to say the word during the session. While the bank had a legitimate aim in dismissing Mr Borg-Neal, being the furtherance of its race action plan and zero tolerance approach to racism, this was not a proportionate means of achieving that aim. Lloyds very easily could have given Mr Borg-Neal a warning, or required him to take further training, instead – both these alternative courses of action would have been far more proportionate, given the circumstances of the case. Mr Borg-Neal’s discrimination arising from disability claim therefore succeeded.
Mr Borg-Neal also argued that he had been subject to direct race discrimination, on the grounds that a hypothetical black comparator would not have been dismissed for the same conduct. The tribunal held that it was difficult to construct a hypothetical comparator in these circumstances, as the very reason that Mr Borg-Neal’s used of the word was so offensive was because of its historical use by white people to describe black people. A hypothetical black comparator’s use of the word would not be as grave as it would be for Mr Borg-Neal or another white employee. The tribunal also considered that there is no term with the equivalent level of offensiveness when used by a black person about white people, with the same historical context of oppression – it therefore could not substitute the word used by Mr Borg-Neal for another word in considering the hypothetical comparator.
In the tribunal’s view, the better starting point was to consider why Mr Borg-Neal was dismissed, and whether the fact that he was white had a significant impact on that decision. The tribunal therefore found that Mr Borg-Neal was not dismissed because he was white, but because he had used an offensive word in a professional setting, which had upset the trainer and contravened several of the bank’s policies. Therefore, his race discrimination claim failed.
There are a couple of important points for employers to take away from this decision. Firstly, when arranging training on race equality or other equal opportunities matters, it is important to set clear boundaries with employees and trainers as to what should and should not be discussed. Here, the trainer had told Mr Borg-Neal that he could speak openly – and while open discussion is important, most employers will want to avoid a situation where their race equality training inadvertently leads to a race discrimination issue!
Secondly, while the bank had a zero-tolerance policy regarding discrimination, this did not automatically entitle it to dismiss Mr Borg-Neal for his transgression. Disciplinary matters must still be investigated thoroughly, and proper consideration given to mitigating factors. Here, for example, Mr Borg-Neal had apologised repeatedly and sought to make amends for his actions. There was also nothing to suggest that the incident would be repeated. For these reasons, the tribunal felt that Lloyds could still have taken a “zero-tolerance” approach, and condemned Mr Borg-Neal’s actions, without dismissing him.
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