Background
The employee posted a racist joke on their employer’s intranet – they apologised for their actions and also had a long, flawless service record. Regardless, the employer decided to dismiss them for gross misconduct. The employee claimed unfair dismissal. The initial tribunal found that anything more than a final written warning fell outside the band of reasonable responses because of the apology and service record.
The EAT disagreed and found that the dismissal was a reasonable response.
Practical takeaways
Zero-tolerance – taking a zero-tolerance approach to racism or any other non-inclusive behaviour sends a strong cultural message as to what your business expects. The EAT made it clear that the approach is a reasonable response.
Reasonable response – this case doesn’t mean that all dismissals connected to racist acts will be fair by default. You’ll still need to show you considered mitigating circumstances and explain why you considered a final written warning to be insufficient in the circumstances.
Records and process remain important – clearly, if your decision-making process is flawed or you don’t have the records to show why you dismissed, the decision is likely to be unfair.
Making a cultural shift – if you’re inconsistent in your decision-making (you dismiss in one circumstance and not in another, for example), the decision will again be unfair unless you have good reasons for the different treatment (which are recorded). We’d recommend early advice to support with new documents, training and manager support if you want to adopt a different culture, perhaps one of zero tolerance. You must ensure all employees are on the same (new) page before holding anyone to account.
