January 30, 2024
What happened in the case?
The employee, who was white, had attended an online race awareness training session. During the session, the employee asked the trainer how he should respond if he heard someone from an ethnic minority use a word that might be considered offensive if the word was used by someone who was not from that ethnic minority. He gave the example of the use of the ‘N word’ by someone in the black community, but used the full word rather than the abbreviation.
After the trainer complained about the employee’s use of the racial slur, the employee was dismissed for gross misconduct and brought a claim for unfair dismissal and race discrimination.
What did the tribunal decide?
The tribunal concluded that the employer discriminated against the employee on the ground of a disability in reaching the decision to dismiss him, because it did not take his dyslexia (which he argued sometimes caused him to blurt things out without formulating them first) into account. It also found that a reasonable employer would not have dismissed him for the use of the racial slur, in the particular context of asking a question about how he should respond if he heard someone else using such a term. Therefore, it upheld his claims for disability discrimination and unfair dismissal.
The tribunal awarded over £470k in compensation, plus interest and tax, to the employee due to the loss of his career, discrimination, and the employer’s conduct.
What does this mean for employers?
Although an extreme example of an unfair dismissal and discrimination case, this case serves as a reminder to employers that even if an employee’s behaviour may seem unacceptable on the face of it, they should take all circumstances into account before deciding to dismiss someone. This is particularly important if there is potential discrimination involved – decision-makers need to be sure that they aren’t being directly or unconsciously influenced by someone’s protected characteristics, such as their ethnicity.
Duties to prevent discrimination and harassment
Employers who can show that they have taken “all reasonable steps” to avoid discrimination in the workplace (for example by providing appropriate training and policies on equality issues) have a defence against certain discrimination claims. If the employer had done its utmost in this case to give training and policy updates to its workforce, the claim may have had a different result.
From October 2024, a new duty will also be placed on employers to be able to demonstrate that they have taken steps to prevent sexual harassment in the workplace. This new duty will require employers to show that they are taking proactive steps in tackling sexual harassment. Although the duty applies to sexual harassment only, it will mean that training of staff on discrimination and harassment in general will become more important, as will updating and enforcing policies relating to discrimination.
If you have an employment law related query, please contact a member of our employment team, Rachel Ford-Evans, on 02920 829 120 or rford-evans@darwingray.com.
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