Legal dilemma: Racist remarks outside work

I work in HR and live in the same village as one of my colleagues. Over the weekend I overheard him making a very offensive racist comment. My company has a very strict policy on discrimination, and we have, in the past, dismissed employees for similar comments made in the office. However, I’m not sure if there’s anything I, or our HR department, can do about comments made outside of the workplace. What action is appropriate?


Carol Thatcher was controversially axed from the One Show – although not from the BBC as a whole – for using a racist term in a private conversation in the so-called green room. However, it is difficult to say what action you should take without knowing exactly what was said by your colleague.


Context is everything in cases like these. The nature of the racist comment will determine whether or not you can take disciplinary action against the colleague, or whether a less official ‘word in his ear’ is more appropriate.


If the comment was generic and in no way connected with work, or does not objectively have the effect of damaging your trust and confidence in him, then the best course of action for an HR director is to have an informal, but on-the-record, chat to explain that such comments can very easily be misconstrued and, if uttered in a work related context, could constitute misconduct and lead to disciplinary proceedings being started. The HR director should also reiterate the company’s dignity at work policy and provide him with an up-to-date copy, making sure he is aware of what is appropriate and what is not.


However, this all changes if the comment was specifically made about someone at work, or in a context which is clearly connected with work. This would be the case if, for example, the employee made the comment about ethnic minorities alongside whom he works on a day-to-day basis, and if this comment would clearly and objectively cause them offence.


In such circumstances, in which a genuine connection with the workplace can be proved, and which may have caused you to lose trust or confidence in the colleague, you are within your rights to take disciplinary action. However, as always, such action should be preceded by reasonable investigation and HR should conduct the disciplinary procedure in accordance with the employment regulations.


Ron Drake, employment partner, Cobbetts

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