Rail conductor wins tribunal over ‘black privilege’ remark

THE right to offend must be protected, a judge said as a rail conductor won a tribunal after being caught questioning “black privilege” in diversity training.

Simon Isherwood, 60, from Northampton, was summarily dismissed for gross misconduct from West Midlands Trains (WMT) in March last year after he accidentally left his microphone on during a “white privilege” webinar.

The session in January last year was attended by about 80 staff from East Midlands Railway, West Midlands Railway and Mr Isherwood’s former company London Northwestern Railway, which is owned by WMT.

At the end of the diversity session, while staff were thanking the host, he was overheard telling his wife: “I couldn’t be a---- because I thought, ‘you know what, I’ll just get f---ing angry’.

“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?”

Mr Isherwood said he made the private remark, unaware his phone was still recording via Microsoft Teams with 30 people still listening, because he felt diversity trainers in the session were “indoctrinating their view on us” that “implied all white people are racist – but I’m not”. His colleagues complained to bosses that they were “disgusted” and “angered” and Mr Isherwood was suspended while an internal disciplinary inquiry took place.

He was then dismissed for causing offence, bringing the company into disrepute and breaching the rail operator’s equality and diversity policy.

The Free Speech Union, on behalf of Mr Isherwood, took WMT to an employment tribunal which ruled yesterday

‘Freedom of expression, including a right to offend, is a fundamental right in a democratic society’

that he was unfairly dismissed. He is now set for a five-figure payout.

Employment judge Stephen Wyeth ruled that the company “acted well outside of the band of reasonable responses of a reasonable employer” in dismissing him and ran a flawed appeals process.

The judge, in Watford, said: “Need it be said, freedom of expression, including a qualified right to offend when expressing views and beliefs, is a fundamental right in a democratic society.”

Compensation will be decided later this year.