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UK: Unfair dismissal: Breach of equality, diversity and inclusion policy

Authors: Ruth Bonino ruth.bonino@clydeco.com, Corinna Harris corinna.harris@clydeco.com and Sophie Jackson sophie.jackson@clydeco.com

Mr Isherwood worked as a conductor for West Midlands Trains for over ten years and was a senior conductor manager at the time of his dismissal.  He attended a diversity and inclusion (D&I) webinar which was hosted by East Midlands Trains Limited on “white privilege” while at home.  At the end of the online session, Mr Isherwood forgot to disconnect and was overheard by attendees swearing and making sarcastic comments to his wife about “black privilege” in Ghana.  Following his dismissal for gross misconduct, he brought an unfair dismissal claim.

The tribunal found that his dismissal was unfair.  It concluded that the employer had failed to consider the possibility that a lesser sanction, such as a warning, and engagement in further D&I training would have been a fairer outcome than dismissal.

Key Action Points for Human Resources and In-house Counsel

This is a tribunal decision, so it will not be binding on other tribunals.  In another recent tribunal case, Bradbury_v_Sky_In_Home_Services_Ltd, an inclusion advocate was found to have committed race discrimination against a colleague who identifies as Latino by commenting that she must have suffered oppression because of her race and the colour of her skin.  Although the tribunal accepted that the remarks were not made to deliberately cause harm, it found that she had been subjected to a “form of stereotyping”.

Although these cases illustrate that issues can arise in the course of D&I training, it is important staff are given D&I training to ensure they are clear about the behaviours expected in the workplace. In addition, failing to provide this training puts employers at a disadvantage when faced with a discrimination claim.  Employers can avoid potentially liability for acts of harassment committed by staff if they can show they took “reasonable steps” to prevent those acts – and a strong “reasonable steps” defence often involves employers showing that they have delivered effective and timely D&I training.

Mr S Isherwood v West Midlands Trains Limited