FSU member Simon Isherwood’s remedy hearing begins – a case update

Earlier this year, Free Speech Union member Simon Isherwood won his Employment Tribunal case against West Midlands Trains (WMT). The rail conductor was dismissed for gross misconduct after asking his wife whether indigenous populations in African countries enjoy ‘black privilege’ following a training session on ‘white privilege’ with around 80 other staff members via Teams. He thought he’d disconnected but he hadn’t, and one of his colleagues complained. Instead of dismissing the complaint, WMT suspended him, investigated him and dismissed him for ‘gross misconduct’.

Taking your employer to an Employment Tribunal is a lengthy and costly process (Allison Bailey had to raise more than ￡500,000 to fund her much publicised?recent legal case, for instance). Thanks to our help, though, Simon was able to hold WMT to account for its actions, and his hearing took place before Judge Stephen Wyeth in the Watford Employment Tribunal. In addition to paying Simon’s legal fees, the FSU drafted in leading civil rights barrister?Paul Diamond?to represent him. Paul has fought landmark cases in the Supreme Court and the European Court of Human Rights, and as might be expected from someone of that calibre, was unrelenting in picking apart the other side’s evidence. He convinced the Judge that the freedom of speech issues in this case required close attention. Indeed, it was for that reason that the judge reserved judgment, rather than giving it?extempore.

In a landmark victory, Judge Wyeth decided that Mr Isherwood had been unfairly dismissed. The judgement reasserted the fact that “freedom of expression, including a qualified right to offend when expressing views and beliefs (in this case on social issues), is a fundamental right in a democratic society”. Particularly important in terms of workers’ speech rights was the clear distinction the judgement drew between the public and the private sphere, noting that in Simon’s case, “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”.

This month,?the remedy hearing to decide compensation began. Paul Diamond and our Chief Legal Counsel, Bryn Harris, are fighting hard on Simon’s behalf, and prospects are good that we’ll get a good settlement for Simon. That’s great news, but it’s a bittersweet victory. What we’re talking about here is an employee with an unblemished career track record who’s lost his livelihood simply because he voiced an entirely lawful opinion within the confines of his own home that woke activists just happen to regard as ‘offensive’.

No-one should ever be placed in that position, which is exactly why one strand of the FSU’s Parliamentary and lobbying work is now focused on persuading ministers and senior officials to amend the Employment Rights Act 1996 to make it impossible for companies to discipline staff for saying politically contentious things outside the workplace.

You can watch the Free Speech Union's General Secretary, Toby Young, make the case for this amendment on?GB News?here. He's also written about it for the?Mail?here.

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If you think there’s a risk you’ll be penalised for exercising your legal right to free speech, whether it’s in the workplace or the public square, you need the protection of the Free Speech Union. Membership starts from just ￡2.49 a month. You can join us?here.?

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