The Employment Appeal Tribunal (EAT) has considered an appeal against an employment tribunal's finding that an employer's decision to dismiss an employee for posting a racist joke on its intranet was outside the band of reasonable responses and so unfair in Vaultex UK Ltd v Bialas.
Mr Bialas worked as a coin processor for Vaultex UK Ltd. A new intranet was launched and Mr Bialas searched the internet for a "clean" joke he could share with his colleagues. He found a section of a website containing jokes which were described as appropriate for the workplace and posted a joke which was later reported for racism and removed by the IT department. A disciplinary investigation followed during which Mr Bialas maintained that he did not realise his post was racist, offered profuse apologies and asked for retraining. Although Mr Bialas's long service, exemplary record and his remorse were all taken into account by the chair of the disciplinary hearing, the chair referred to Vaultex's "zero tolerance" policy in respect of discriminatory language and Mr Bialas was dismissed.
The tribunal found that the dismissal fell outside the band of reasonable responses. The middle ground would have been a lesser sanction especially given Mr Bialas's apologies and willingness to undergo training. Something else to take into account was his long and unblemished service record. It found that no reasonable employer would have taken the decision to dismiss in these circumstances.
The EAT considered all the facts found by the tribunal, but in particular the findings as to the contents of the post, where it was posted and the nature and content of Vaultex's policy on discriminatory language. In doing so it concluded that any tribunal ought to have concluded that dismissal (however harsh the tribunal might think the decision to be) was within the band of reasonable responses open to the employer. To find otherwise had been perverse and so the EAT held that the dismissal was not unfair.
Take note: Where employers have "zero tolerance" policies in place in relation to discriminatory behaviour and language, the decision in Bialas shows that harsh sanctions, such as dismissal, for the breach of such policies will fall within the band of reasonable responses. In this case dismissal was legitimate despite the fact that Mr Bialas had a long and unblemished service record.
