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…

Aug 08, 2023

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.

Disability Discrimination – ET’s Reasons for Dismissing Claim ‘Inadequate’

One of the most fundamental principles of justice is that unsuccessful litigants must be given an adequate explanation of the reasons why they have lost. In the context of a disability discrimination claim, an Employment Tribunal (ET) was found to have failed in that basic task. The case concerned a probationary employee who suffered from medical conditions that amounted to a disability. She was dismissed, purportedly due to performance issues. She launched a direct discrimination claim on the…

EAT Rejects Unauthorised Deduction from Wages Claim

The Employment Appeal Tribunal (EAT) has rejected an appeal against the dismissal of an employee’s complaint that unauthorised deductions had been made from his wages because he did not receive an additional day’s pay or a day off in lieu when he worked on bank holidays. The employee’s contract of employment stated that he could be required to work on bank holidays, and that he would be paid at double time for those days and given an alternative day of leave in lieu. When he worked on a bank…

Discrimination and the Burden of Proof – Supreme Court Clarifies the Law

Ever since a crucial alteration was made to the wording of the Equality Act 2010, the question of where the burden of proof lies in employment discrimination cases has been the focus of intense legal debate. An important Supreme Court ruling has, however, resolved the issue once and for all. The case concerned a postman who was born in Nigeria and identified as black African and Nigerian. He had qualifications in computing and wished to obtain a managerial or technical role within Royal Mail.…