An employment tribunal (Employment Judge Lewis sitting with lay members) has considered whether the dismissal of a manager who used an offensive racial term during a race education training session was unfair or discriminatory.
Mr Borg-Neal was a manager at Lloyds Banking Group plc. During the training, which was conducted by an external provider, Mr Borg-Neal 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. When he did not get an immediate response, he added, “The most common example being the use of the word ‘N****’ in the black community.” However, Mr Borg-Neal used the full word.
Following an internal investigation and disciplinary process concerning Mr Borg-Neal’s use of offensive language, he was dismissed for gross misconduct. He brought claims against the Bank for, among other things, unfair dismissal, discrimination arising from disability and direct race discrimination.
The tribunal noted that a reasonable employer could take the view that Mr Borg-Neal’s use of language was misconduct. However, context was everything. Mr Borg-Neal had used the word once and had immediately apologised. His question was relevant and well-intentioned. He had not used the word as a term of abuse, but simply to ask how to deal with the use of unacceptable language. The Bank therefore did not have reasonable grounds for believing that Mr Borg-Neal’s actions were gross misconduct. It had also failed to conduct a reasonable investigation.
Further, the dismissing manager had conflated the questions of whether the word should have been used and whether Mr Borg-Neal should have been dismissed for having used it. Mr Borg-Neal had immediately and repeatedly apologised. He consistently demonstrated that he had learnt from his actions. No reasonable employer could or would have dismissed him in these circumstances. His dismissal was therefore unfair.
The employment tribunal also upheld a claim for discrimination arising from disability. Mr Borg-Neal had dyslexia, and the tribunal accepted that this made him reformulate questions and burst things out before losing his train of thought, contributing to the way he expressed himself in the session. However, it rejected a claim for direct race discrimination on the basis that no substantial part of the reason for dismissal was that Mr Borg-Neal was white.
(Borg-Neal v Lloyds Banking Group plc ET/2202667/22Borg-Neal v Lloyds Banking Group plc ET/2202667/22 (4 August 2023).)