Was dismissal for use of the ‘N-word’ in race awareness training unfair and discriminatory?

Training in equality, diversity and inclusion can contribute towards showing that the employer has taken ‘reasonable’ steps to prevent discrimination, harassment and victimisation. Due to its sensitive nature, such training must be handled carefully, and participants must be given clear boundaries for acceptable and unacceptable conduct. An employment tribunal has recently considered whether an employee was unfairly dismissed and subjected to discrimination arising from disability when he was dismissed for gross misconduct after he used the ‘N-word’ in a race awareness training session.

BN, who has Dyslexia, worked as a manager with a bank. The bank required its managers to attend a virtual ‘Race Education for Line Managers’ training session, provided by an external training provider. Some people had problems logging on at the start of the training session and missed the introduction, which set out the behavioural guidelines for participants. At a relevant point during the session, when the discussion turned to intent versus discriminatory effect, BN asked how he as a manager should handle a situation where he heard someone from an ethnic minority use a word that might be considered offensive if it was used by someone not within that minority and quickly added, ‘The most common example being use of the N-word in the black community’ (but BN used the full word). He immediately apologised and did not repeat the word further. The training provider complained to the bank about the incident and said that the lead trainer had been upset and had to take 4-5 days off work (saying it was the ‘log that broke the camel’s back’). BN was dismissed for gross misconduct following an investigation and disciplinary process.

The employment tribunal held that BNs dismissal was unfair. Although the use of the N-word in its full form is clearly offensive, the context was important. BN had used the word in a race education training session designed to allow managers to learn, his question was valid and was asked at a relevant point in the training session. BN had not used the word to offend or to abuse anyone, but rather to better understand as a manager how to handle someone else using the phrase. There was no evidence that BN had ever said or done anything racially discriminatory before or after his question, and he had immediately and repeatedly apologised and demonstrated consistently that he had learned from his mistake.

The tribunal were also critical of the Bank’s investigation. Although the external training company complained, the lead trainer had refused to participate in the investigation and the Bank had not spoken to the two other trainers or any other participants to establish the facts. No consideration had been given to what other matters may have influenced the lead trainer needing to take time off work, despite the comment about it being the ‘log that broke the camel’s back’. These factors led the tribunal to conclude that the Bank had not conducted a fair disciplinary investigation.  In this context and set of circumstances, the Bank did not have a reasonable belief that BN had committed an act of gross misconduct and dismissal was outside the band of reasonable responses.

The tribunal also went on to uphold BN’s disability discrimination claim. The way BN formulated questions was impacted by his Dyslexia and meant that he often quickly asked a question before he forgot it (because he would lose his train of thought if he was interrupted). Therefore BN’s dismissal amounted to discrimination ‘arising from’ his disability.

Borg-Neal v Lloyds Banking Group PLC [2023] ET 2202667/22

Important note: ET level decisions are merely of persuasive value, and are not binding upon future ETs, but can provide a useful indicator of how certain issues are currently being dealt with within the ET.