Employment Law Case Update: Unfair dismissal following racial term

Dismissing an employee must be done in the correct manner, even if you consider the employee to be in the wrong.  Our Employment Law team today review the case of Mr I Stevenson v London Borough of Redbridge 2021 where the tribunal considered whether an employee who used a racial slur was unfairly dismissed.

Mr Stevenson was employed by the borough from November 1988 until his dismissal in July 2020. Prior to the incident that led to his dismissal, he had a clean disciplinary record.

In February 2020, Mr Stevenson attended a workplace training course on preventing radicalisation. The session facilitator said that the session was a “safe space” and that they could ask questions. During the training, Mr Stevenson raised a question about racism. In asking his question he referred to an incident he witnessed many years ago in which the N word was used. In describing this incident, he used the N word in full, after which he then apologised for doing. While no one at the training session reprimanded Mr Stevenson for his use of the word, two other attendees later complained to senior management.

After an investigation, Mr Stevenson was invited to a disciplinary hearing which was conducted by Mr Akinfe. At the hearing, Mr Stevenson was given the opportunity to question the complainants. He also wanted to read a prepared apology for using the N word and causing offence but was told by Mr Akinfe he could not do so under the employer’s procedure for disciplinary hearings. Mr Akinfe apparently thought Mr Stevenson had known since February which employees had made the complaint and so had had ample time to apologise. In reality, Mr Stevenson had only found out who the complainants were when he was invited to the disciplinary hearing in July.

At the hearing, Mr Stevenson said he felt “terrible” about the impact his use of the word had on the individuals present at the training and he accepted that he should not have used the word in full.

After the hearing, Mr Stevenson was dismissed by letter. Mr Akinfe said he had “not been presented with any evidence that [Mr Stevenson] had made any attempts to engage or show remorse to the victims”.

Mr Stevenson appealed his dismissal but was unsuccessful. In upholding his dismissal, the appeal panel took into account that he had worked in the HR department, and that he had shown no remorse for his use of the word.

Mr Steven then filed a claim for unfair dismissal.

The Employment Tribunal (ET) found that Mr Stevenson was unfairly dismissed. It reasoned that the decision to dismiss was materially influenced by incorrect facts, namely:

1. Mr Akinfe mistakenly believed that Mr Stevenson held an HR advisor role when in fact he worked in the HR Department in an IT role and had no real HR experience. This mistake was not corrected at his dismissal appeal hearing.
2. Mr Akinfe’s decision to dismiss was also influenced by his belief that Mr Stevenson showed no remorse for using the N word in full. In reality, Mr Stevenson had apologised right after using the word and prepared a statement of apology. Judge Noons wrote “A reasonable employer would have recognised that these statements and the apology on the day showed some level of remorse on behalf of [Mr Stevenson]. The [employer’s] conclusion that they had no evidence of, and that [Mr Stevenson] had not in fact shown, any remorse was a conclusion that no reasonable employer would have reached.”
3. The ET also took note of the fact that Mr Stevenson had a clean disciplinary record, stating “A reasonable employer would have concluded that 31 years’ service with an entirely clean disciplinary record throughout that period was significant mitigation against imposing the sanction of dismissal”.

Though Mr Stevenson was successful in his unfair dismissal claim, the ET reduced the amount to be awarded by 90% to reflect the fact that he understood the impact of the word and that he should never have used it. The actual amount to be awarded will be determined at a later hearing.

This case reminds employers to be very careful when dismissing an employee without notice for misconduct. Employers must ensure they have all the relevant facts and have taken account of any mitigating circumstances. Employers should also consider whether it would be reasonable to impose any alternatives to dismissal, such as a final written warning, especially where the employee has many years’ service with a clean disciplinary record.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.