A recent appeal against a tribunal decision was brought by an employer who had dismissed their employee for forwarding a joke on a company staff intranet that used racial stereotyping about Mexican, black, and Jewish individuals. In this case, the post was visible to all staff, until the post was promptly removed by the IT department following a complaint within a few minutes of the publication of the post. The employer’s "zero-tolerance" equality, diversity and inclusion policy made it clear that conduct of this nature amounted to potential gross misconduct that could result in dismissal for a first offence.
In law, the dismissal of an employee due to misconduct must be a reasonable response to the misconduct and employment tribunals are required to decide in unfair dismissal claims if a dismissal was “within the band of reasonable responses”. In this case, the employment tribunal found that the dismissal was outside the band of reasonable responses and so was unfair. It ruled that an employer’s "zero tolerance" approach to using discriminatory language did not necessarily mean that dismissal was the only option and that there was a middle ground, which would have been a lesser sanction. Furthermore, in mitigation, the employee, who had long service and a clean disciplinary record, was apologetic and had expressed a willingness to undergo diversity training and pleaded that he did not realise that the joke was discriminatory. The employer appealed.
The Employment Appeal Tribunal disagreed with the tribunal’s decision. It found that the tribunal had misapplied the band of reasonable responses legal test and had wrongly fallen into the substitution mindset. In reaching this finding, the Employment Appeal Tribunal noted that where an employer has taken into account mitigating factors but nevertheless decides to dismiss, a dismissal will not necessarily be outside the band of reasonable responses. In this case, the tribunal had not properly explained why the dismissal was unfair despite the employer having considered the relevant facts and having decided that its “zero tolerance” policy outweighed the mitigating factors.
As this case demonstrates, a dismissal is unlikely to be fair where an employer has failed to carried out a reasonable investigation and hasn’t considered the relevant context, or taken into account mitigating factors, such as the employee’s remorse or a willingness to undertake training. However, this does not mean that an employer who has considered the wider context will necessarily have acted unfairly if it decides to dismiss where the employer has good reasons for doing so (even if another employer may have decided a lessor sanction was more appropriate).
Employers should contact the FSB Legal Advice line for legal advice prior to dismissing an employee.