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Train manager wins unfair dismissal case after forgetting to turn his mic off after a Zoom webinar on white privilege and asking ‘do they have black privilege in other countries?’

Makbool Javaid, Partner - Simons Muirhead & Burton

In the case of Mr S Isherwood V West Midlands Trains Limited Simon Isherwood commenced his employment with West Midlands Trains, a well-known train operating company, on 7 September 2009. In 2015 he was promoted to the role of Senior Conductor Manager, a management position that he remained in until his dismissal.

In January 2021, Mr Isherwood voluntarily attended a Zoom webinar on the subject of ‘white privilege’. As has become more prevalent following the pandemic, Mr Isherwood was attending the course from his home. He was doing so in his own time having worked and finished his shift earlier that day.

At the conclusion of the online meeting, unbeknown to Mr Isherwood, he had not disconnected from the webinar which he had joined via his mobile phone. While people were thanking the host and gradually logging off he was overheard to say:

“I couldn’t be arsed because I thought you know what I’ll just get f*ing angry… You know what I really wanted to ask, 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…”

Another colleague called the claimant to inform him that he had not properly disconnected and could still be heard. These remarks were part of a private conversation the claimant was having with his wife in the privacy of his own kitchen. He had no idea at the time of making them that other people could hear him, least of all those attending the course.

Suspended the same day following a complaint by a manager from sister company East Midlands Trains, which organised the webinar, a mortified Mr Isherwood apologised profusely to his bosses for the microphone lapse, his swearing and any unintended offence.

He insisted the first part of the conversation did not relate to the webinar at all but was in response to a note his wife had placed in front of him, asking, ‘Have you phoned the oven man?’ because their appliance was broken.

Yes, he admitted, he’d felt a little annoyed and insulted by some aspects of the webinar, presented by an outside consultant who was white, which seemed — to him at least — to suggest that all white people are born inherently racist.

His question about ‘black privilege’ — he maintained —was not intended as criticism or mockery of the webinar, but as a genuine one intended to help him understand better.

His explanations, however, fell on deaf ears. He was sacked after West Midlands Trains (WMT) ruled he had ‘caused offence, brought the company into disrepute and breached our equality, diversity and inclusion policy and the code of conduct’.

In his ruling, employment judge Stephen Wyeth said: ‘Freedom of expression, including a qualified right to offend when expressing views and beliefs [in this case regarding social issues], is a fundamental right in a democratic society.

‘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.’

A West Midlands Trains spokesman said after the employment judge’s ruling: ‘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.’

A date for a remedy hearing to decide compensation or whether Mr Isherwood can have his job back has yet to be set.

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