When Is Dismissal for Using Offensive Language Unfair? A Tribunal Case Study

When it comes to fairly dismissing an employee, context is crucial. A recent employment tribunal case highlights how dismissal for using offensive language can be deemed unfair depending on the circumstances.

Background

The claimant was employed as a manager at a bank. During a race education training session, he asked how to handle situations involving potentially racially offensive language. When no immediate answer was given, he added: “The most common example being the use of [the ‘N’ word] in the black community.” This comment was unedited.

The claimant was dismissed for gross misconduct and brought claims of unfair dismissal and discrimination arising from disability.

Tribunal Judgment

The employment tribunal upheld the claimant’s claims. 

A reasonable employer could take the view that the claimant’s use of language was misconduct. In this context, however, it was not reasonable. The comment was relevant and well-intentioned: he had asked how to deal with unacceptable language. The claimant had apologised several times and demonstrated he had learnt from his actions.

Further, as the claimant was dyslexic, he would reformulate questions and burst things out before losing his train of thought.

Comment

Employers must carry out a fair investigation and follow a reasonable disciplinary process. The decision to dismiss must fall within the range of reasonable responses by a reasonable employer given the circumstances.

In this case, dismissal was not a reasonable outcome.

When considering dismissal for offensive behavior, employers should weigh factors including but not limited to:

• The background to the offence
• Whether there are any other options, such as a final warning or a demotion (where the employment contract allows for this)
• The employee’s length of service
• The employee’s disciplinary record to date
• Whether the employee admitted the offence and showed remorse
• Whether the employee was provoked or acted under stress

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