UK: Unfair Dismissal for Posting Racist “Joke”: Reasonable Responses Test
Authors: Graham Mitchell, Ruth Bonino and Sophie Jackson
Mr. Bialas was employed for 10 years by a large firm conducting cash processing. He Google-searched a joke which he then posted on the company intranet. After a few minutes of posting the joke, it was reported for racism and removed by the company’s IT department. He was taken through the company’s disciplinary process, during which he explained he had found the joke on the “clean section” of the website. The investigator found that the joke was racist and dismissed him because he had “run the risk in posting the post without giving it proper thought.” The investigator felt constrained by the company’s zero-tolerance policy in respect of discriminatory language; and he took account of his long service and exemplary record but decided that to give a written warning would appear that the company was not taking its EDI campaign seriously. The joke was clearly racist.
The employment tribunal found that the dismissal was unfair because it was outside the band of reasonable responses. The EAT overturned the decision, finding that the employment tribunal had substituted its own decision for that of the employer and had incorrectly applied the band of reasonable responses test.
In its reasoning, the tribunal considered that the employer had options other than dismissal (despite its zero-tolerance approach). But the EAT said that this did not mean that dismissal was outside the band of reasonable responses.
The tribunal reasoned that Mr. B had apologised profusely and asked for retraining, thereby demonstrating insight into the impact of his actions; and that Mr. B’s lack of proper thought and the context in which the joke was presented suggested a level of misunderstanding rather than malice.
But the EAT said that it appeared that the tribunal had not analysed the thought process of the investigator when considering the apology. Rather, it seemed that the tribunal had reflected on what went though Mr. B’s mind when posting the joke – in other words, it had applied its own view, rather than that of the employer as it should have done.
The tribunal referred to Mr. B’s long service with and exemplary record, but the EAT said that the zero-tolerance policy made it clear that conduct of this sort could lead to dismissal for a first offence, and since the post was visible to the entire workforce, it was not open to the tribunal to conclude this meant dismissal was outside the reasonable band of responses.
Key Action Points for Human Resources and In-House Counsel
The band of reasonable responses test gives employers a wide discretion when considering appropriate sanctions for misconduct. In this case, the employer’s zero tolerance policy gave the employer scope for dismissing a long serving employee with an unblemished record. Employers introducing such a policy should bear in mind the potential impact it could have on employees whose conduct falls below the required standards.
