Can the use of an offensive racial term during an equality training session amount to gross misconduct?

This was considered in the case of Borg-Neal v Lloyds Banking Group.

The Facts

Mr Borg-Neal (the Claimant) was a manager at Lloyds Banking Group plc (“the Bank). On 16th July 2021, he attended a training session “Race Education for Line Managers” which was conducted by an external provider. During the training session, the Claimant asked the trainer how a line manager should handle a situation in which they hear someone from an ethnic minority use a word that might be considered offensive if used by someone not within that minority. The Claimant did not get a response and therefore stated “The most common example being the use of the ‘N’ word in the black community.” However, the Claimant used the full word but apologised immediately and not repeated the word.

This was reported by the trainer to the Bank.

The Bank investigated this and following an internal investigation and disciplinary process, the Claimant was dismissed for gross misconduct. This was despite the fact that the Bank concluded that the Claimant did not intend to cause hurt or offence, that he asked the question without malice, and that the question had been valid. The Bank held that he should have known better than to use the full word in a professional environment.

He brought claims against the Bank for, among other things, unfair dismissal and direct race discrimination.

The employment tribunal (ET) stated that a reasonable employer could take the view that the Claimant’s use of language was misconduct. However, context was a key question that needed to be considered namely:

• The Claimant had used the word once and had immediately apologised.
• The question was relevant and not ill intended.
• The use of the word was not used as a term of abuse, but simply to ask how to deal with the use of unacceptable language.

The ET held that that Bank did not have reasonable grounds for believing that the Claimant’s actions were gross misconduct.

Comment

It is extremely important that employers ensure that their employees are firmly encouraged to attend equality and diversity sessions.

It is also important for employers to consider conduct issues resulting from conduct that could be deemed to be discriminatory and/or harassment, however any sanctions need to be considered on a case by case basis and all factors need to be considered.

It should be noted that the Judgment stated that this case does not mean that the Bank was unreasonable in taking the view that the word used by the Claimant was inappropriate and should not be used in a professional setting. Whether the Claimant should have been dismissed for having used the word was a separate question. In the “very particular circumstances” of this case, the tribunal felt that dismissal was unreasonable.