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 used.  It was at this point that the claimant was thinking about rap music and how certain words could be used.  He 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 abbreviation.  This 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 respondent.  This looked at a series of matters but included some anonymous comments made by those who were on the training.  Part of this included that the training seemed ‘preachy’ rather than training.  It 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 session.  The 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 misconduct.  In this situation, context is everything – it took place during a race education training session and the claimant had not heard the opening script.  It 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 account.  It 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.          

The full case can be viewed here: https://www.gov.uk/employment-tribunal-decisions/mr-c-borg-neal-v-lloyds-banking-group-plc-2202667-slash-2022