The Claimant in this case was a long-standing employee of Lloyds bank. He was dismissed following a race education training session where, in asking a question relevant to the subject matter and topic being discussed, he opted to use the N-word which caused significant distress to one of the trainers conducting the session. The bank operated a zero-tolerance policy and found that whilst the Claimant had immediately apologised and understanding that the racially offensive term should not have been used under any circumstance, the incident was classified as a gross misconduct and sackable offence.
The Claimant brought claims of Unfair Dismissal and Disability Discrimination, saying that his condition of dyslexia had an effect on his oral communication and his employer was aware of this during the investigations into the incident.
Decision
The Tribunal found that no reasonable employer would have dismissed the Claimant in the circumstances. The whole purpose of the race education training session was to “explore intention vs effect and for the attendees to learn”. The dismissing officer himself commented that the word was used in what was a “good question” and the bank accepted that there was no ill intent from the Claimant in using the word. In its judgment the Tribunal said:
“…we find that a reasonable employer could have considered the claimant’s use of the word to be misconduct, because it was inappropriate and because some euphemism should have been used. However, we do not think a reasonable employer would consider it to be gross misconduct. […] context is everything in this case.”
The Tribunal also found that the bank’s investigation into the incident was unreasonable. They did not commission an occupational health report once the Claimant notified them of the effects of his dyslexia and did not interview the other two trainers present who that Claimant says did not seem affected by the comment made. The Tribunal also upheld the Claimant’s complaint that the dismissal amounted to discrimination arising from his disability as his condition causes an “inability on occasion to properly express what he is thinking”.
Points to note
Even where the employee’s behaviour may be against policy and categorised as gross misconduct, this does not mean that a dismissal will be fair.
The employer in this case should have taken more proportionate action in the circumstances such as issuing a warning or offering further training. The Claimant had a clean disciplinary record and had demonstrated significant understanding of the issue and offered to apologise to all those involved.
Further, once notified of the Claimant’s dyslexia, the employer should have taken this into consideration when deciding what action was appropriate.