Name of weekly column: Speechly Speak 

This week's contributor: Emma Bartlett, solicitor, Speechly Bircham

Boris sets high standards for the office of Mayor

There has been a spate of alleged racist remarks in recent weeks from high profile politicians to supporters at football games. Such remarks when made in the public domain demand a swift response; Plymouth Argyle handed out lifetime bans to supporters who were heard making “racist remarks”; a conservative member of the Welsh Assembly was rebuked by a radio presenter on air for his remark that the Italian footballers were “greasy wops” and subsequently resigned, and Boris Johnson’s advisor, James McGrath, resigned after his remark in response to a suggestion that older Caribbean migrants might return home following Boris’s election as Lord Mayor, he said: “Well, let them go if they don’t like it here”...

Boris was criticised for taking the weekend to consider his response. He said that he wanted to see what Mr McGrath had to say about the remarks reported before deciding what to do. Boris was also criticised for supporting his aide before he had investigated the allegation. His delay was not surprising given that McGrath was credited with playing a major role in the election and that Boris himself has been plagued by comments being taken out of context by the press.

Racist remarks and employer investigation

However, his actions were consistent with that of any responsible employer faced with such an issue. If an employer learns second hand that a senior employee has allegedly made a racist remark, natural justice and the statutory disciplinary procedures demand that the employer investigate first before deciding what action, if any, is necessary.

Boris’s delay, a mere 48 hours, was neither tardy nor a breach of the statutory obligation to act without delay in such circumstances. There have been few cases dealing with the issue of delay and those that have been reported are of little help. For example in case of Yorkshire Housing Limited v Swanson, a delay of five months between holding a disciplinary meeting and issuing the written decision to dismiss was deemed unreasonable. But the case did confirm that a breach of this obligation within the statutory dismissal procedure made the dismissal automatically unfair.

Boris denied that McGrath’s remarks were racist, but given the high profile attributed to the statements and the sensitivity of the issue of race for him so early in his term of office he accepted McGrath’s decision to resign. 

Politcal risks & reputation

One can only speculate whether McGrath would have been asked to go if he had not resigned. However, the innuendo of Boris’ statement accepting McGrath’s resignation was that while the remarks were not racist the comments damaged the reputation of the office of the Mayor and therefore made it impossible for him to continue and that this would have been the reason for his dismissal.  

This may have been sufficient to justify the action as politicians know that they have to be careful what they say and cannot react to provocation of any kind.  However, given the need for employers to be consistent in their treatment of employees under threat of disciplinary action, any disciplinary action taken by Boris to force McGrath to leave might have been challenged as Boris himself has had to distance himself from similar statements he made allegedly taken out of context that were considered racist for example when he referred to black children as “piccaninnies” and that black people had “smiles like watermelons”.

Diversity

McGrath’s case emphasises the risks of political life and the need to be constantly on guard when making statements. But if racism is to be exposed and eliminated there is a constant need to have a clear commitment to diversity. This requires employers to uphold their equal opportunities policies and to take prompt and decisive action against employees who make or act in a discriminatory manner.