Last year the case of Mr Carl Borg-Neal vs. Lloyds Banking Group was heard at the employment tribunal. Mr Borg-Neal claimed for unfair dismissal after he was dismissed as a result of saying the ‘N-word’ at work. Given the context of the situation, he felt his behaviour was badly judged, but not grounds for gross misconduct. The tribunal agreed with Mr Borg-Neal’s, awarding him £800K in compensation and sending a stark warning to employers.
Background
Mr Carl Borg-Neal had been working as a bank manager at Lloyds since 1993 in Hampshire. He had had no issues with his conduct. In fact, he had even been assigned as a mentor for the three junior colleagues in a scheme for ethnic minorities.
Following George Floyd’s death in the United States, heightening awareness of racism, Lloyds organised online diversity training for their staff. On 16th of July 2021, Borg-Neal logged on to teams to take part in the session ‘Race Education for Line Managers’. During the session, the 100 or so Lloyds employees on the call were encouraged to speak openly whilst conducting the training, being told:
start talking, speak freely, and forgive yourselves and others when being clumsy today”
During a question session, Mr Borg-Neal asked a question surrounding the music industry. Originally, he posed his question asking: how should he handle a situation where he heard someone from an ethnic minority use a word that might be considered offensive if used by a white person. The trainer did not initially understand the question being posed. In response the Claimant elaborated adding “The most common example being use of the word n***** in the black community.” The trainer scolded the Claimant and threatened the Claimant with being removed from the course as the Claimant attempted to apologise.
Lloyds’s Reaction
Following the incident, the trainer took five days off work to recover from the offence. At this point the training provider contacted Lloyds to complain about the incident. Lloyds reacted by launching an HR investigation that same month and Mr Borg-Neal was invited to a disciplinary meeting in October. Here he explained that he was attempting to further his understanding by asking the question he did. He regretted using the word, and had apologised sincerely. Additionally, he had since taken it upon himself to understand more why it was deeply offensive even in this context.
Nonetheless, Lloyds ultimately decided to dismiss the claimant for gross misconduct in December 2021, and rejected his appeal. Mr Borg-Neal was deeply affected by this decision. he felt labeled as a racist, and even stepped down from his local rugby team. Hoping to clear his name, Mr Borg-Neal submitted a claim for unfair dismissal the following year.
Protected Characteristics
As part of the case, Mr Borg-Neal argued he had been discriminated against on two grounds. Firstly, he argued that his dyslexia, a disability, made it harder for him to articulate complicated questions. This led him to struggle posing his question, and ultimately to saying the full N-word. During the investigation, he explained this effect of his dyslexia. The investigators ignored this fact and did not consult experts to understand the effects of dyslexia. The judge in the case found the investigators had ‘lay-man’s understanding’ of the condition. Ultimately the court determined that his dyslexia had led to unfavourable treatment.
Mr Borg-Neal also argued he had been discriminated against on racial grounds as he is white. This argument however was rejected, with the judge finding the comparator of a black person ineffective. Due to the history of the word, the judge found a black person saying the word to a white person was fundamentally less offensive.
An Ineffective Investigation
The tribunal additionally significantly criticised the investigation. The criticism included that the protracted time frame of the investigation impacted the Claimant. Additionally, this disrupted the collection of evidence. No recording of the session was available, so a single employee was asked about the session fourth months later.
Furthermore, the trainer who had taken offence was not interviewed, nor were the other two trainers on the call. Mr Amaechi, who leads the training agency was interviewed, but he only had a second hand account of what had happened. Much of the investigator’s interview with him also did not pertain to the incident at all. Lastly, in the original email, the context of the use of the offensive word was incorrect, claiming that Mr Borg-Neal had said ‘in America some people are called ****** ‘, which was factually not true.
Conclusions
Ultimately, the tribunal found that Lloyds Group’s actions had not been proportionate. The judge noted that Borg-Neal had not intended to use the word in an offensive manner, nor had he used it to refer to a group of people. The judge stated:
The word was not used as a term of
abuse towards anyone… The claimant wanted to learn”
Additionally, the Claimant’s actions afterwards proved his unmalicious intentions. He had repeatedly apologised and sought to educate himself on the topic.
Whilst Lloyds had the goal of producing an inclusive organisation, the tribunal suggested a warning would have been a proportionate response to achieving this goal. Ultimately, a reasonable employers would not have dismissed the employee in this situation, constituting unfair dismissal.
Employers can learn a number of lessons from the case:
- Proportionate Response and Fairness: Ensure disciplinary actions align with the severity of the conduct. In Mr. Borg-Neal’s case, a more measured response, like a warning, would have been appropriate, given the lack of malicious intent. The tribunal found that such a severe penalty was unreasonable, hence the finding of unfair dismissal.
- Effective and Timely Investigations: Employers should conduct prompt and thorough investigations. The extended timeframe in this case disrupted evidence collection and impacted the employee, emphasizing the importance of an efficient investigative process.
- Consideration of Individual Circumstances: Consider individual characteristics. In this case dyslexia, when making decisions. Ignoring these factors can constitute to unfavourable treatment under the Equality Act, as seen in this case.