Unfair dismissal – when context can make a difference

Posted on October 2nd, 2023

The following case Mr C Borg-Neal v Lloyds Banking Group PLC examines how context can make a difference as to whether a dismissal is fair or unfair.

Race education training

Mr Borg-Neal worked for Lloyds Bank that was rolling out race education training to its employees in 2020. During a race education training event, Mr Borg-Neal asked how he should handle a situation where he heard someone from an ethnic minority use a word that might be considered offensive. He proceeded to reference the N word, using the full word rather that the abbreviation. Following the session, the training provider reported the use of Mr Borg-Neal’s language to the bank and the trainer was off work for 4–5 days having been distressed by use of the word. Mr Borg-Neal was subsequently dismissed for gross misconduct as he should have known better than to use the full word in a professional environment and should have realised that it could have serious impact.

Unfair dismissal and disability discrimination

Mr Borg-Neal brought claims for unfair dismissal and disability discrimination (failure to make reasonable adjustments and discrimination arising from disability). His disability was dyslexia. Mr Borg-Neal later amended his claim to include a claim of direct race discrimination.

No reasonable employer would have dismissed

The employment tribunal (ET) found that no reasonable employer would have dismissed Mr Borg-Neal in those particular circumstances. While the employer was reasonable to hold the view that the full N word was appalling and should be avoided in a professional environment, the word had not been used as a term of abuse towards anyone or to describe anyone. Mr Borg-Neal had apologised immediately and repeatedly throughout the disciplinary process. Further, the employer had accepted the question was without malice, was relevant and well intentioned. The whole purpose of the training session was to explore intention vs effect. A more reasonable outcome, had the employer wanted to make a point, would have been to issue a warning and more training. His dismissal was therefore unfair in the circumstances. Had the word been used in a different context, the ET’s findings may have been different.

Dyslexia a strong factor

The ET also upheld the claim of discrimination arising from disability. The evidence led the ET to believe that Mr Borg-Neal ’s dyslexia was a strong factor in causing how he expressed himself, for example, to ‘spurt’ things out before he lost his train of thought. The claims of failure to make reasonable adjustments and direct race discrimination failed.

Advice to schools

The above case acts as a reminder that the facts of a case should be considered in full during any disciplinary proceedings and before any decision is reached. The opinion and perception of people can differ greatly. When considering the delivery of a training event, in particular equality related training, it is useful to set out expectations with regards to behaviour during the sessions, while allowing and encouraging participants to ask awkward questions in a safe environment.

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