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Diversity, equity and exclusion

Intent and context always matter in the use of language

The Free Speech Union racked up another significant legal victory at the employment tribunal (ET) last month, securing what promises to be a significant pay-out for a dyslexic Lloyds bank manager sacked in a free speech row.

Carl Borg-Neal, 57, was unfairly dismissed and subject to disability discrimination when Lloyds Bank sacked him for using a racial slur during a workplace-based diversity training session. He is now likely to recover damages for past loss of earnings, future loss of earnings, a pensions award, compensation for discrimination and compensation for personal injury, all amounting to a significant sum.

In July 2021, Mr Borg-Neal was one of around 100 senior Lloyd’s managers who logged on to an online training session entitled “Race Education for Line Managers”. Provided by an external organisation, the training formed part of the bank’s “Race Action Plan”, launched in the wake of George Floyd’s death the previous year.

Carl had worked for Lloyds Bank for 27 years without issue, was popular among colleagues, and had risen to a highly technical managerial role at head office. Far from being indifferent to racial equality, he had recently joined a new scheme mentoring young colleagues from ethnic minorities and was working with three mentees, one of African descent, one of Asian descent and one of European (non-UK) descent.

At the start of the session, the trainer read out a script that established the parameters for what was to follow. “When we talk about race, people often worry about saying the wrong thing,” she said. “Please understand that today is your opportunity to practice, learn and be clumsy… The goal is to start talking, so please speak freely, and forgive yourself and others when being clumsy today.”

At a relevant point during a subsequent discussion on “intent vs effect”, Mr Borg-Neal decided to take the trainer’s statement at face-value and “speak freely”. Thinking partly about rap music, he asked how as a line manager he should handle a situation where he heard someone from an ethnic minority use a word that might be considered offensive if used by a white person. Met with a puzzled look from the trainer, he added, “The most common example being use of the word n***** in the black community.”

Carl didn’t receive a response to his “clumsy” question. In fact, he was angrily berated by the trainer. He tried to apologise for any offence, but was told if he spoke again he would be thrown off the course.

Other managers on the course complained that Carl’s question never received an answer — indeed, anonymous feedback collated after the session suggests the trainer’s behaviour was not particularly well-received. “I was shocked by the manner and tone used by one presenter to a colleague,” said a respondent. “After saying at the beginning this would be a safe environment and [acknowledging] we may make mistakes, she launched into a vitriolic attack… I believe [Mr Borg-Neal] was trying to ask a valid question to aid understanding.”

After the course, the trainer claimed she was so offended by the use of the n-word that she was too sick to work and took five days off. The provider then complained to Lloyds Bank.

It was the fact that the trainer needed to take time off that triggered an investigation, with the bank subsequently accusing Carl of racism and launching a disciplinary process that led to his dismissal for gross misconduct.

After 27 years, his career lay in tatters.

Following an unsuccessful attempt to appeal Lloyd’s decision, Carl joined the FSU. Having reviewed the case, we instructed Doyle Clayton — an expert firm of employment solicitors — who brought a claim against Lloyd’s in the Tribunal.

Something that emerged particularly strongly from the hearing was the extent to which Lloyd’s focused on Mr Carl Borg-Neal’s use of the n-word in isolation, irrespective of the context in which he’d used it.

For instance, the initial HR caseworker talked to colleagues from the bank’s Inclusion and Diversity team “to understand the impact of the word used on session attendees”. The disciplinary Hearing Manager then spoke to witnesses “to understand the impact of use of the term on the facilitator”. During the appeal process, the new Hearing Manager also focused on the impact that use of the n-word had had on the individual carrying out the training.

It was on the basis of this semantic fixation that the bank could concede that Mr Borg-Neal had not intended to cause any hurt, that he asked the question with no malice, and that the question itself was valid, but then still dismiss him for gross misconduct. The bank’s argument was that Mr Borg-Neal should have known better than “to use the full word in a professional environment”. 

However, thanks to top-drawer representation from Doyle Clayton, we were successfully able to steer the panel towards an appreciation of the wider context in which the n-word had been uttered.

Explaining its unanimous decision to rule the dismissal unfair, the panel noted variously that: the incident had taken place during a race education session, and specifically during a discussion of “intent versus impact”; it was a well-intentioned relevant question regarding how to handle a situation of racially offensive language in the workplace; there was no suggestion that he was taking an opportunity to say an abusive term under cover of a question; and that his dyslexia affected his ability to formulate his question carefully. 

Lloyds also relied heavily on the suggestion that Mr Borg-Neal had demonstrated a lack of concern for the impact of his actions on others. According to the Hearing Manager, it was “because of the absence of any deeper acceptance as to why [Mr Borg-Neal’s] use of the word was so inappropriate [that it was] difficult to make the case that action short of dismissal such as further training or removing [him] from a position of influence as a role model would be sufficient”.  

The panel was distinctly unimpressed with this line of reasoning

The panel was distinctly unimpressed with this line of reasoning. “This is an unusual distinction given that the claimant had repeatedly apologised,” they wrote. “He told [the Hearing Manager] that he understood in hindsight that the trainer could be upset. He said a friend had told him use of the word was inappropriate and ‘I get that now’. He said he understood his conduct had fallen below expectations. One wonders what was expected of him.”

On the bank’s additional claim that Mr Borg-Neal’s repeated complaint that the trainer mishandled the situation demonstrated a lack of empathy, the panel had this to say: “We find that a reasonable employer would not have reached such conclusions or held it against the claimant. The claimant was fighting for his job.”

The tribunal concluded that “in the very unusual and particular circumstances” of this case, “no reasonable employer would have dismissed” Carl.

Carl now stands to receive significant compensation for the way he has been treated.

Everyone at the FSU is delighted for Carl. The way he was treated by Lloyds is shocking and heartbreaking.

Not only has he lost a job where he had found he could excel, in spite of his disability, but during the initial, unnecessarily lengthy disciplinary process and the legal battle that followed, his mental and physical health deteriorated. He developed depression, anxiety, and a host of physiological stress-induced conditions. Today, when he becomes anxious, he speaks with a pronounced stutter.

His victory does at least serve as an important reminder to employers of the importance of context when it comes to matters of workplace free speech.

As per the ruling handed down in Carl’s case, any given word or phrase in the EDI lexicon may well have an accepted dictionary definition — and yes, some of those meanings will be deeply unsettling to some employees.

But when HR departments set out to ascribe certain meanings to ostensibly unsettling words uttered by employees in the workplace, they must now consider a host of other, contextually relevant factors, including the speaker’s intentions, tone, style of delivery, and the specifics of the setting.

As Mr Borg-Neal’s case so grimly demonstrates, to proceed otherwise is to curtail employees’ speech right and to cause a chilling effect on workplace dialogue and discussion around matters pertaining to equality, diversity and inclusion. 

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