Offensive language or freedom of expression?

The facts

North Western Railway arranged a diversity training webinar for a number of its staff.  One of the topics discussed was “white privilege” and the attendees were asked to think of questions they could ask on the subject.  At the end of the webinar, but before the webinar had ended, a conductor (Mr Isherwood) said to his wife, “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?...”  This was overheard by a number of Mr Isherwood’s colleagues, some of whom reported the incident to management.

Mr Isherwood was initially suspended whilst an investigation was conducted and he was eventually dismissed for causing offence, bringing the company into disrepute and breaching the companies policies on equality, diversity and inclusion and its code of conduct.

Mr Isherwood later said that he made the comment to his wife as he believed the webinar host was indoctrinating its view on the attendees, adding that the webinar host had “implied all white people are racist - but I'm not”. 

In considering the case, Employment Judge Wyeth held that Mr Isherwood was unfairly dismissed and stated, “Freedom of expression, including a qualified right to offend when expressing views and beliefs, 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.”

So where does this leave employers?

The Human Rights Act 1998 provides individuals with the right to a freedom of expression, which the Tribunal allowed Mr Isherwood to rely upon.  However, this is not an absolute right and there are restrictions such as hate speech or using language which is harassing in its nature.  Additionally, statutes such as the Equality Act 2010 provides protection for employees in the event of discriminatory treatment.

In order to regulate employee behaviour employers can introduce rules and policies such as an equality policy which states the employer has a zero tolerance towards discriminatory language in the workplace.  With effective policies in place employees will know what is or is not permissible and where a line is crossed an offended employee can raise a grievance and/or the employer can commence disciplinary proceedings against the offending employee.

Views

This case turns on its own facts as Mr Isherwood was asked to think of questions he could ask the webinar host on the topic of white privilege, the comment he made to his wife was on the subject, was expressed as his personal view on a social issue and arguably expressed in private as opposed to in the workplace.

In ordinary circumstances, were an employee to make an offensive comment in the workplace the employer would be justified in investigating the incident and if appropriate, dismissing the employee following a full and thorough disciplinary process.  The key is to have the right policies in force so employees understand what is not acceptable and the potential consequences of breaching the employer’s standards.