Employee sacked for racist language found to have been dismissed unfairly (Mr Carl Borg Neal vs Lloyds Banking Group)
The Facts in Mr. Carl Borg Neal vs. Lloyds Banking Group
Mr Carl Borg (“The Claimant”) was employed by the Lloyds Banking Group (“The Respondent”) continuously since May 2004. Prior to that, he had worked for the Respondent from 1993 to 2002, before being made redundant.
He had a good record with no disciplinary action having been taken against him on any issues. From 2011, the Claimant worked for the new Payments Design Authority (PDA) as a PDA Manager and was also appointed as a mentor on the Respondent’s new monitoring scheme. He mentored three people, one of African descent, one of Asian descent and one non-UK white European employee.
The Claimant argued that in the course of his employment that:
- The disciplinary proceedings he was subjected to were not conducted fairly;
- The sanction imposed of dismissal for gross misconduct was unfair;
- Proceedings against him failed to take account of his disability; and
- Actions taken against him discriminated on the grounds of his race.
Why The Complaint Was Raised
On 16 July 2021, the Claimant attended an online MS Teams training session called `Race Education for Line Managers’ organised by the Respondent for its line managers. The Claimant at one point in the meeting during a discussion on intent vs. effect asked how he should handle a situation where he heard someone from an ethnic minority use a word that could be considered offensive by someone not within that minority.
As he did not get a response from the trainer, he then added “The most common example being the use of the N word in the black community”. Unfortunately, the Claimant used the full word rather than the abbreviation which caused offence to Ms Osei the trainer, who was herself black. A complaint was made to the Respondent and the Claimant was then subject to disciplinary action for alleged gross misconduct.
Internal Investigation For Mr. Carl Borg Neal Takes Place
On 26 July 2021, the Respondent commenced an investigation into the incident. Thereafter, on 23 September 2021, the Claimant was informed that the matter was moving to the formal stage, and a Hearing Manager, David Lewis had been appointed and would be in touch.
On 29 October the first disciplinary meeting took place, and the Claimant was represented by a previous counter-signing manager, Mr Bailey. The Claimant stressed he had not meant to cause offence to the trainer and had immediately apologised for using the term he had at the training session.
He also emphasised the boundaries were not clear at the start of the meeting as to what was acceptable and unacceptable to say. He felt that the use of the disciplinary process being used against him was unnecessary, as other options would have been more appropriate such as re-training, discussions with his line manager on behaviours or further apologies or mediation with the trainer.
Gross Misconduct Upheld – Appeal Rejected.
On 17 December 2021, the Respondent wrote to the Claimant upholding the allegation of gross misconduct. It was on the basis that the Claimant had admitted saying the N word in full whilst asking a question during a training session. The letter of dismissal said the term “is a racially-loaded and offensive word which is totally unacceptable in the workplace, and as such, contravenes the values of the group as an anti-racist organisation”
The Respondent also referred to this conduct as a breach of certain sections of the Group Colleague Conduct Policy and the Group’s Code of Responsibility. These sections talk about valuing differences in order to build relationships with colleagues and the wider communities.
On 10 February 2022, a hearing was held to discuss the appeal raised by the Claimant. In addition to restating his case, it was also raised on his behalf that he had dyslexia which could affect the way in which he formulated words. He also has the tendency to ‘spurt things out’ in the Claimant’s own words, to understand words better. He had felt embarrassed and self-conscious about his dyslexia so had not declared this to the Respondent prior to the disciplinary. The Claimant agreed to a referral to the occupational therapist.
On 23 June 2022 the occupational therapist, Dr. Emslie, noted the Mr Carl Borg Neal’s description that “His problems particularly pertain to the written and spoken word with word finding issues, difficulty in posing questions in clear and succinct ways often requiring verbal iteration when in meetings“.
On 15 August 2021, the Respondent wrote to the Claimant, rejecting his appeal. The Respondent felt that there was insufficient evidence to conclude that the Claimant’s dyslexia caused him to use the N word. His contract was terminated, and he then brought claims for unfair dismissal, disability discrimination and later in an amended claim direct race discrimination.
The Decision of the Employment Tribunal
The Employment Tribunal found in favour of the Claimant, Mr Carl Borg Neal, and said that he was unfairly dismissed. The Respondent’s actions in imposing disciplinary action for gross misconduct were disproportionate and unreasonable given the nature of the complaint against a long-serving employee with an unblemished.
They also found that the Respondent subjected the Claimant to discrimination arising from disability by dismissing him and not upholding his appeal. They found on the balance of probabilities that the Claimant’s dyslexia was a strong factor causing how he expressed himself at the training session, and in his use of the full word rather than finding a way of avoiding it. The claims relating to reasonable adjustments and direct race discrimination were not upheld.
The Tribunal further discussed the action of dismissing the Claimant, and whether this was a proportionate means of furthering the Bank’s anti-racist education programme and race action plan. by making it clear that racist language was unacceptable. They found that dismissing the Claimant was not a proportionate means and they could have issued him a warning and arranged further training. Not dismissing him would not have damaged the Respondent’s aim.
Our Lawyers View
Steve Norton, Lawyer at Redmans, says – The Respondent had been unreasonable and disproportionate in their actions against the Claimant who was a long-serving employee and had no prior issues around conduct or performance. He had suffered with his physical and mental health due to the nature of the proceedings against him.