Background: 

The claimant was employed as a Super Operator/Coin Processor by the respondent, a cash processing company.    The claimant was dismissed in October 2021 for the reason of misconduct.  The respondent stated that it takes equality, diversity and inclusion very seriously and pointed to its policy stating that there could be harassment even if they were not a target and that someone overhearing insensitive jokes may be offended.  It further notes that in such a situation it could lead to disciplinary action. 

The claimant posted a joke on the work intranet.  The post was as follows: 

‘Something for Anti-Racist campaign from Dagenham Coin: 

Do not be racist; be like Mario.  He’s an Italian plumber, who was made by the Japanese, speaks English, looks like a Mexican, jumps like a black man, and grabs coins like a Jew!’ 

The Tribunal found that the references to Mexicans and Black men were stereotypes.  Indeed, the stereotype of physical strength had been used to justify persecution of Black people.  The final comment relating to Jewish people was found to be antisemitic.  This was on the basis of centuries-long association of Jewish people with moneylenders and usury, which was the basisfor the historical exclusion of Jewish people from European society.  The claimant brought a claim for unfair dismissal. 

Outcome: 

The Tribunal, at first instance, found that the dismissal was unfair on substantive grounds.  It was held that the decision to dismiss was not in the band of reasonable responses.  The Tribunal stated they were not substituting their own view.  There were four reasons for this: 

At appeal, the claimant argued how he felt there were positive connotations from the post and that was his intention.  The element relating to Jews he stated related to the ‘Jew with a Coin’ which was a good-luck charm in Poland.  

The focus was on the Tribunal’s decision relating to the band of reasonable responses. The EAT held that the fact that the Tribunal gave itself a correct self-direction as to the test, and to be aware of the substitution error, and asserted that it had taken that approach in its conclusions does not render the decision immune from challenge.  

The EAT held that the decision maker plainly regarded the post as racist and the Tribunal was entitled to regard that as a reasonable view.  Indeed, the Tribunal decision does not say that the reasonable employer would have imposed a lesser sanction than dismissal.   The fact that the Tribunal set out the four reasons had to be taken in the wider context.  This reasoning tended to be akin to substituting a decision as the focus was not on what the employer believed from the investigation and disciplinary process.  Accordingly, the appeal was allowed with the EAT finding that the decision to dismiss did fall within the band of reasonable responses.  

Practical Guidance for Employers: 

The same joke was posted by Mario Balotelli, a professional footballer who was at Liverpool at the time, and that led to a ban and an apology.   In this case, the pertinent legal aspect is the application of the band of reasonable responses test.  The Tribunal may have explained the test and reminded itself of it but it was from the actual decision and the particular reasons for that decision where the EAT was able to find that it was akin to a substituted decision rather than focusing on the decision of the employer through the process. 

The full case can be viewed here:
https://assets.publishing.service.gov.uk/media/65ddc8b0cf7eb10011f57f9a/Vaultex_UK_Ltd_v_Mr_Robert_Bialas__2024__EAT_19.pdf