A train conductor who was overheard making a comment about ‘black privilege’ to his wife while participating in an online training session was unfairly dismissed.
The Watford employment tribunal found that Mr Isherwood, who was a senior conductor manager for West Midlands Trains, was entitled to make the comments as they were made in the privacy of his own home, and should not have been deemed a sackable offence.
In January 2021, Isherwood attended a webinar on the subject of “white privilege”. He attended the webinar from home in his own time, having finished his shift earlier that day.
When the webinar concluded and participants were thanking the trainer, Isherwood had not realised he was still connected and his microphone unmuted when he said to his wife: “…do you know what I really wanted to ask, and I wish I had? Do they have black privilege in other countries? So, if you’re in Ghana…”
These remarks were part of a private conversation the claimant was having with his wife at home. He had no idea at the time that other people could hear him.
His line manager telephoned him later that day and suspended him from duty, pending an investigation.
Some of the webinar attendees emailed the course host to complain about what they had overheard Isherwood saying. Evidence provided to the tribunal showed that only three attendees out of around 30-40 logged on to the webinar raised concerns.
Following an investigation and disciplinary hearing in which he expressed his regret at making the remarks and for causing any upset, he was dismissed for gross misconduct, despite his “unblemished” disciplinary record.
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The letter confirming his dismissal said he had breached the company’s equality, diversity and inclusion policy and code of conduct.
The tribunal heard that there was no recognition by the company during the disciplinary process that the remarks made were made to his wife in the privacy of his own home.
West Midlands Trains accepted Isherwood was not racist, nor had he made any unlawful remarks.
In its judgment in Isherwood v West Midlands Trains, the employment tribunal noted that freedom of expression, including a qualified right to offend when expressing views and beliefs, is protected under the Human Rights Act 1998.
“It simply cannot be right that employees are not allowed to have views that they privately express about courses they attend, however odious or objectionable others might consider them to be if they come to know of those views,” employment judge Stephen Wyeth said.
“Whilst undoubtedly contentious, the remarks he expressed (albeit in an unguarded fashion because they were made to his wife) were akin to expressions of views not infrequently heard on radio and television or read in some newspapers. A significant section of society may of course disagree with those views, consider them narrow minded and may also take offence at them but undoubtedly there will be another section of society who hold a contrary view.
“However contentious or odious some might regard the claimant’s comments to be, the expression of his private view of the course to his wife in the confines of his own home was not blameworthy or culpable conduct that could amount to contributory conduct.”
The tribunal found that the process followed by the company before it dismissed the claimant had not been reasonable, and agreed with his claim that he had not been treated in the same way as other employees who were found to have been discriminatory in relation to race. It also found that the company did not consider alternative sanctions to dismissal.
It found he was unfairly dismissed, but noted that any compensation would be reduced by 15%, while his basic award reduced by 25%, because of his conduct.
A West Midlands Trains spokesperson said: “We respect the decision of the tribunal. West Midlands Trains is an inclusive employer and there is no place for discriminatory behaviour within the rail industry.”
The claimant was represented by the Free Speech Union. The union’s general secretary, Toby Young, said: “Too many employers think that saying something that woke activists deem to be ‘offensive’, even if it comes nowhere near to being unlawful, is grounds for dismissal. It isn’t, as the judge in this case has made clear. Forget about diversity training for employees. What we need is free speech training for employers”.
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