UK: EAT rules that dismissal for thoughtless breach of 'zero tolerance' policy was fair, notwithstanding unblemished long service

The EAT has confirmed that an employer may be able to dismiss fairly for conduct which, though not malicious or intentionally discriminatory, it reasonably considers to be seriously thoughtless or lacking in insight, negligent or reckless.  The fact that such conduct breaches a clear ‘zero tolerance’ policy, particularly where this has been publicised to the workforce in an EDI campaign, may well mean that dismissal is within the range of reasonable responses, provided the employer has properly considered any mitigating factors. 

In Bialas v Vaultex UK Ltd, the employee posted a racist ‘joke’ on an internal network, having misunderstood the connotations and assumed that it was suitable as it was from a ‘family-friendly’ website.  At first instance the employment tribunal ruled that dismissal was not within the band of reasonable responses required for dismissal to be fair, notwithstanding the employer’s ‘zero tolerance’ policy;  it considered that ‘zero tolerance’ did not mean an employer had automatically to dismiss for misconduct and in its view dismissal was too harsh.   

The EAT overturned this decision, finding that the tribunal had wrongly substituted its own view of what was a reasonable response.   It was relevant that the employer had extensive policies which included reference to the impact of offensive material on fellow employees and that a first offence could result in dismissal.  It was also reasonable for the employer to take into account that it had launched an EDI campaign publicising the policies to the workforce, which the employee was well aware of (indeed his post had been a contribution to it), and it was entitled to conclude that this campaign would have been undermined had a lesser sanction than dismissal been imposed.  It was reasonable for the employer to conclude that these considerations outweighed the mitigating factors (the employee’s long record of unblemished service, apology and offer to undergo retraining).