Band of Reasonable Responses

When dismissing an employee, it is important to consider whether or not dismissal is a "reasonable response" to the act of misconduct that they commited.

In the example of Borg-Neal v Lloyds Banking Group, the employee was attending race education training. In this training session, the employee had a question about a hypothetical situation in which he, a white male, heard someone from an ethnic minority use language that would be offensive if coming from someone not of that minority. The specific example that he gave was the use of a specific slur by members of the black community.

However, in asking this question, the claimant used the full word. This led to the trainer taking a week off of work due to the impact of this language. The claimant was investigated - in this investigation, a key witness refused to speak on the matter and the Microsoft Teams recording of the session in which the comment was made was deleted. The claimant had stated that he made the comment as he believed the training session to be a "safe space", and he was genuinely attempting to gather more knowledge on the subject, not intending to cause offence.

Although the employment tribunal agreed that the use of this language was unacceptable and likely to cause offence, they ruled that the decision to dismiss was not fair. This was because at the time the claimant made the comment, it was relevant to the training and a genuine attempt made by the claimant to gain more understanding on the topic.

The Employment Tribunal held that the respondent's aim of sending a message of "zero-tolerance on any racial discrimination or use of racist language" could have been met with a formal sanction under the disciplinary procedure, such as a written warning, rather than dismissal.

The claimant also explained that he had difficulty formulating questions and often had to "spurt out" what they are thinking or risk losing their train of thought, due to his dyslexia. This means that the decision to dismiss was also regarded as discriminatory.

The claimant was awarded £309,867.86, including £15,000.00 for injury to feelings.

This shows that even where misconduct has been committed, it is essential to ensure that the response to this misconduct is proportional.

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