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Unfair dismissal and disability discrimination – Borg-Neal Vs Lloyds

wooden stamp with caption - you're fired

When does a race education training session get you fired? (unfair dismissal and disability discrimination)

The case

Mr Borg-Neal worked for Lloyds, attended a race education training session and, in that session, asked about he heard a racist term used by a person from an ethic minority and that related to that ethnic minority. In this instance, wondered Mr Borg-Neal, how should a line manager react, as, presumably no offence would have been caused.

When he didn’t receive a clear answer from the trainer, he pressed ahead with his chain of thought, this time giving an example of a black person using the ‘N word’, although he didn’t say ‘N word’, he used the full term.

Realising the upset his use of the word had caused, he immediately apologised.

This was still too much for Lloyds, who dismissed him for gross misconduct, for using offensive and racist language in the training session.

The Employment Appeal Tribunal felt that Lloyds had rather missed the point, and had gone beyond the range of reasonable responses a reasonable employer could have been expected to apply to a situation like this one. They took into account Mr Borg-Neal’s immediate regret, and his dyslexia, which tended to cause him to speak before properly forming his chain of thought.

The ruling – unfair dismissal & disability discrimination

As a result Lloyds were found to have unfairly dismissed him and to have discriminated against him on grounds of his disability.

Could using the ‘N word’ amount to gross misconduct?

Yes, but employers must always be mindful of the context. A well-conducted investigation might have concluded that Mr Borg-Neal had used the word in the context of a training session in which race discrimination was the central topic. Having sensed his error, they may have also concluded that his immediate apologies were indicative that he had not meant to cause offence.

Of course, they might also have considered the role his dyslexia (a protected characteristic) played in the process, and the fact that the trainer had failed to answer his initial question, which led him to search for an example.

Is there any justification for Lloyds dismissing in this case? Frankly our HR team at myHRdept have struggled to understand how Lloyds reached the conclusion that his conduct amounted to gross misconduct.

HR Support from JCHR & myHRdept

All of our retained payroll and HR packages contain a bank of support hours, and our ER team would be very happy to use those hours to investigate cases like this one.

If you’re thinking of outsourcing your HR, payroll or employment law needs, why not contact myHRdept? Call us on 01628 820515, email us at enquiries@myhrdept.co.uk to discuss your requirements, or contact us via our website and we’ll call you back.

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