Borg-Neal v Lloyds Banking Group [2023]
Decision Number: Case No: 2202667/22
Published on: 25/01/2024
Issues Covered:
Article Authors The main content of this article was provided by the following authors.
Jason Elliott BL Barrister & Lecturer of Law, Ulster University
Jason Elliott BL Barrister & Lecturer of Law, Ulster University
Jason elliott new
LinkedIn

Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University.  As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal.   At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.

Background

Background: 

The claimant was employed by the respondent from 2004.   In 2011 the claimant was appointed as Manager of the Payments Design Authority and in 2021 he was appointed as a mentor.   He mentored three mentees, one of African descent, one of Asian descent and one White European.  

The issue leading to this case arose in July 2021 when the claimant attended an online training session entitled ‘Race Education for Line Managers’This was part of a Race Action Plan launched in 2020 by the respondent for which the respondent was commended by the Tribunal. 

During the session there was a discussion on ‘intent v impact’ relating to language that may be usedIt was at this point that the claimant was thinking about rap music and how certain words could be usedHe did not get an immediate response from the trainer when he said that the most common example was the use of the N word in the black community.   The claimant used the full word rather than the abbreviationThis led to the training organisation informing the respondent that this had happened and the trainer was distressed by it.   

An investigation was carried out by the respondentThis looked at a series of matters but included some anonymous comments made by those who were on the trainingPart of this included that the training seemed ‘preachy’ rather than trainingIt also said that there was a ‘vitriolic’ attack on a colleague by one of the trainers when it was stated at the beginning that it would be a safe environment.   

This proceeded to a disciplinary meeting where it was stated that as the claimant was a manager within a group he was expected to adhere to the Code of Responsibility which included being an anti-racist organisation.   The letter inviting the claimant went onto say that using the N word was such that it was highly offensive and inappropriate to use in a business environment. The disciplinary panel did not talk to the trainers but did talk to a colleague of theirs who said that the N word was a word for a black person to use if they want and not for a white person to use.   He went onto say that even as a black person it would not be used in mixed company or in the workplace.   A decision was made that the use of the N word was discriminatory behaviour and that it amounted to gross misconduct.  

Outcome: 

Whilst the Tribunal held that the respondent genuinely believed that the claimant was guilty of misconduct, the question asked was regarded by the respondent to be valid and that the claimant immediately apologised and was quiet for the rest of the sessionThe claimant did not use the word to abuse or as a descriptor; instead it was being used to give context to a question.  Accordingly, the Tribunal found that a reasonable employer could have considered the use of the word to be misconduct but that it would not have considered it to be gross misconductIn this situation, context is everything – it took place during a race education training session and the claimant had not heard the opening scriptIt was a well-intentioned question as to how to deal with racially offensive language being used albeit not as a descriptor or as abuse.  

The Tribunal upheld one of the disability discrimination claims, finding that the claimant had dyslexia and this could lead him to keep reformulating questions and to ‘spurt’ things out before he loses his train of thought, so that he is concentrating more on the complex thought in his head than how he actually formulates the question and on the surrounding social cues. The evidence led the Tribunal to believe, on the balance of probabilities, that the claimant’s dyslexia was a strong factor causing how he expressed himself at the session, and in his use of the full word rather than finding a means to avoid it.  Accordingly, the claim was successful. 

At a separate remedies hearing, the following awards were made: 

  • Basic Award - £13,600 
  • Loss of statutory rights - £3,150 
  • Discrimination also found under the Equality Act 2010 - £88,846.95. 
  • Loss of Pension - £14,634.03 
  • Future Loss relating to injuries suffered as a result of the incident - £309,867.86 
  • Injury to Feelings/Personal Injury - £43,050 

Practical Guidance for Employers: 

This case has led to a huge sum of compensation being awarded to the claimant.   It demonstrates how the band of reasonable responses operates and how the context of a particular statement should be taken into accountIt was noted by the Tribunal that it could reasonably be regarded as misconduct in terms of saying the whole word but that in the context it did not reasonably amount to gross misconduct         

Continue reading

We help hundreds of people like you understand how the latest changes in employment law impact your business.

Already a subscriber?

Please log in to view the full article.

What you'll get:

  • Help understand the ramifications of each important case from NI, GB and Europe
  • Ensure your organisation's policies and procedures are fully compliant with NI law
  • 24/7 access to all the content in the Legal Island Vault for research case law and HR issues
  • Receive free preliminary advice on workplace issues from the employment team

Already a subscriber? Log in now or start a free trial

Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 25/01/2024