Use of Discriminatory Words in the Workplace – Context Always Matters

Employers are entitled to enforce zero-tolerance policies in respect of discriminatory remarks in the workplace. As an Employment Tribunal (ET) ruling showed, however, a thorough investigation is always required prior to a dismissal, not least because words that may be utterly unacceptable in one context may not be in another.

A sales manager with an otherwise blemish-free disciplinary record was summarily dismissed on grounds of gross misconduct on the basis that he had used the discriminatory word ‘spastic’ during a conversation with a colleague who was disabled by cerebral palsy.

The sales manager said that he had used the word when expressing an opinion as to how language had changed over the years in that, in the 1960s and 1970s, someone with the colleague’s condition might have been referred to in that way. He asserted that he had gone on to say that he was pleased that such language was no longer used. He said that, taken in context, he had not used the word in an offensive manner.

Upholding his unfair dismissal claim, the ET noted that it was no part of its role either to determine whether he was in fact guilty of the misconduct alleged or to substitute its own view for that of the employer. Whilst accepting that he was dismissed for a potentially fair reason, the ET was not satisfied that the employer held a reasonable belief in his guilt. In the absence of a proper investigation, it had no reasonable grounds for reaching such a conclusion.

It was possible for use of otherwise discriminatory words in a historical context not to amount to misconduct, let alone gross misconduct. No steps were taken to check the veracity or accuracy of the sales manager’s account with the colleague or another witness to the conversation. Other aspects of the dismissal decision betrayed hopeless confusion or a complete lack of logic and the unfairness to him was not merely procedural, but substantial and thoroughgoing. The ET directed determination of remedy issues at a further hearing, if not agreed.