Unfair dismissal – EAT finds dismissal relating to a racist ‘joke’ fair

The case of Vaultex UK Ltd v Mr Robert Bialas highlights the importance of considering all the facts when determining the fairness of dismissal.

Mr Bialas was employed as a Super Operator/Coin Processor. In September 2021, he searched for and shared what he believed to be a ‘clean’ joke on the company’s Workvivo system. The post was reported for racism a few minutes after it was created and then removed by the company’s IT department.

Disciplinary

An investigation was undertaken and Mr Bialas was invited to a disciplinary hearing. At every opportunity Mr Bialas apologised, both orally and in writing. He also asked for retraining. The company had a zero-tolerance policy in respect of discriminatory language. The dismissing officer considered that the post was racist and breached the company’s policy. Despite Mr Bialas having a long service, exemplary record and his numerous apologies, a decision was made to dismiss Mr Bialas. The dismissing officer felt that a written warning would appear as if the company was not taking its equality, diversity and inclusion (EDI) campaign seriously.

Unfair dismissal

Mr Bialas brought a claim for unfair dismissal. The employment tribunal (ET) found that the dismissal was outside the band of reasonable responses for the following reasons:

• The company did not have to dismiss. There were other options available, although this did not alone mean that the company was not entitled to dismiss.
• Mr Bialas had offered full apologies and offered to undertake retraining, as such he had shown insight into the impact of his actions.
• Mr Bialas had a previous unblemished record and long service.
• It was obvious to the dismissing officer that Mr Bialas had not given proper thought to his actions.

Appeal

The company appealed to the employment appeal tribunal (EAT). The EAT held that the ET had substituted its own view for that of the company. The EAT, having considered all the facts found by the ET, and in particular having regard to the findings as to the contents of the post, where it was posted and the nature and content of the company’s policies and campaigns, concluded that any tribunal properly applying the law could not have concluded other than dismissal. However harsh the decision may be, it was within the band of reasonable responses open to the employer. In light of the conclusion, the EAT substituted a finding of fair dismissal.

Advice to schools

It is important in all cases of misconduct that a thorough and fair investigation is carried out. The dismissing officer at a disciplinary hearing should review the full circumstances of the case, including the employee’s level of service and employment record. While the dismissal in the above case was found to be fair, each case should be considered on an individual basis to determine whether the decision to dismiss is reasonable based on the particular circumstances of the case.

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