Is dismissal considered a reasonable response when an employee makes a racist joke?

The case serves as a reminder that Tribunals must not substitute their own judgement for that of the employer.

This was considered in the case of Vaultex UK Ltd v Mr Robert Bialas [2024] EAT 19. The Employment Appeal Tribunal (EAT) held that the Claimant who had posted a racist joke on the Respondent’s intranet was entitled to be dismissed. The EAT held that it was within the band of reasonable responses for the Respondent to dismiss the Claimant on the grounds of gross misconduct.

The legal bit

The dismissal of an employee will be deemed to be unfair unless the following conditions are satisfied:

1. The employer can show that the dismissal was for a potentially fair reason for dismissal. In the case the reason was conduct which is a potentially fair reason; and
2. The tribunal decides that the employer acted reasonably in treating the reason as a sufficient reason for dismissal.

Under section 98(4) of the Employment Rights Act 1996, to determine whether the dismissal is fair, an Employment Tribunal (ET) must assess whether the employer's decision to dismiss fell within the range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted. This is very much an objective test and will much depend on the individual circumstances of the case however the ET must not "substitute its view" for that of the employer and it is irrelevant whether the ET would have dismissed the employee if it had been in the employer's shoes.

Background

In 2021, Mr Bialas (the Claimant) brought a claim in the ET alleging that he was unfairly dismissed. Mr Bialas worked for the Respondent as a Super Operator / Coin Processor from September 2011 until his dismissal on 13 October 2021.

In 2021 the Respondent introduced a new internal intranet system for employees which acted similarly to a social network. In September 2021, the Claimant posted a racist joke on the intranet which was reported and removed by the Respondent’s IT department. The Claimant’s conduct was investigated and the Claimant was dismissed on the grounds of gross misconduct. The Claimant brought a claim for unfair dismissal.

The claims

The ET held that the post was racist and did violate the Respondent’s Equality, Diversity and Inclusion policies and their zero-tolerance stance in respect of discriminatory language. They however ruled that dismissal was not a reasonable response when taking into consideration the Claimant’s remorse, lack of understanding, long service, and unblemished record.

The Respondent appealed the decision on the basis that the ET had substituted its own view of the appropriate sanction rather than applying the band of reasonable responses test.

The EAT allowed the appeal and ruled that the ET had allowed its decision to be influenced by the judge’s own view of the gravity of this conduct having regard to the various mitigating factors that the Claimant had relied upon and therefore had substituted its own view.

The EAT held that the dismissal was fair as it was within the band of reasonable responses. 

Comments

This case serves as a reminder that Tribunal’s must not substitute their own opinions when determining whether a response is reasonable.

It also acknowledges that employers have a wide discretion when deciding on appropriate sanctions along with the importance of employees following zero-tolerance policies as not doing so can have severe consequences.