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“Some of my best friends are…” unfairly dismissed

When it comes to dismissing an employee fairly, context can be everything.  This was the case in a recent employment tribunal, where the claimant was dismissed for using a highly offensive racial term. 

Background

The claimant was employed as a manager with the respondent bank.

In the context of a race education training session, he asked how he should handle a situation where he might hear a colleague use a term that could be construed as racially offensive. In the absence of an immediate response, the claimant added: “The most common example being the use of [the ‘N’ word] in the black community.” His comment was unedited.

The claimant was dismissed for gross misconduct. He claimed unfair dismissal and discrimination arising from a disability.   

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

As well as carrying out a reasonable investigation and following a fair process, an employer’s decision must fall within the range of what, in those circumstances, would be the reasonable responses of a reasonable employer. 

In this case, it was not reasonable for the employer to view the incident as misconduct.  

When determining whether dismissal is a fair and reasonable outcome, employers should take all relevant factors into account, 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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