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EMPLOYMENT TRIBUNAL (ET)

Note that as an employment tribunal case, this is not binding authority. ET cases may be persuasive on other tribunal decisions, but unlike those courts higher in the system (EAT, CoA, Supreme Court), they do not have to be followed by other courts and therefore the outcome is only indicative of how a similar case might be treated.

The ET made it clear in its judgment that it considered the respondent to have been entirely reasonable in its view that “(1) the full N word is an appalling word which should always be avoided in a professional environment; and (2) even if no malice was intended and the full word was used not as a term of abuse and not as a descriptor of people, nevertheless, simply hearing it said is likely to be intensely painful and shocking for black people…”.

However, this alone did not render the decision to dismiss in this case fair, as the question whether the claimant should have been dismissed for using the full word was a different question to whether or not they should have used it. In the ETs opinion, the respondent likely had the concern that failure to dismiss could be seen as the respondent condoning the use of the word by an employee.

Acknowledging that in many circumstances the above could be grounds for dismissal, on the facts of this case, the ET held that the decision to dismiss the claimant was not within the band of reasonable responses. This was based on the fact that the subject matter of the training session at the time the comment was made was exploring intention v effect. The claimant, in the view of the ET, did not ask this question in order to get the opportunity to use the offensive word “under the guise of an innocent question”. It was asked to deepen their knowledge and clarify an area of confusion. Indeed, the dismissing officer in this case referred to it as a “good question”. As a result, the ET held that the decision to dismiss was unfair. The respondents aim of sending a message of “zero-tolerance policy on any racial discrimination or use of racist language” could have been met with a formal sanction under the disciplinary procedure rather than dismissal.

On a final note, the claimant explained that the question that caused the offense may not have been worded appropriately due to their dyslexia. This had the effect of causing them to keep reformulating questions and spurting things out before losing their train of thought. As a result, the claimant would concentrate more on their complex thoughts than actually formulating questions and on the surrounding social cues. The ET therefore upheld that, on the balance of probabilities, that the claimant’s dyslexia was a strong factor in their use of the full word rather than finding another way to phrase the question.

In the remedy hearing, the claimant was awarded £309,867.86. This included £15,000 injury to feelings award for the shock, hurt, humiliation and damage to their self-esteem, and loss of a job they loved.