FSU member Simon Isherwood wins landmark free speech victory for workers all over the country
With the FSU’s help, Simon Isherwood won his Employment Tribunal case against West Midlands Trains (WMT) last week. The rail conductor was dismissed last year for gross misconduct after asking whether indigenous populations in African countries enjoy ‘black privilege’ following a training session on ‘white privilege’ with around 80 other staff members via Teams. At the end of the session, Simon accidentally left his microphone on and was overheard telling his wife: “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? … and I wish I had, ‘Do they have black privilege in other countries? So, if you’re in Ghana? …’”
Despite making these comments in his home when he had a reasonable expectation of privacy, Simon was suspended from duty that same day. After an internal disciplinary probe, WMT sacked Mr Isherwood, claiming the comments “caused offence, brought the company into disrepute and breached our equality, diversity and inclusion policy and the code of conduct”. As reported by the Telegraph, Mail, GB News, Reclaim the Net and Zero Hedge, the hearing took place on 5th and 6th May before Judge Stephen Wyeth in the Watford Employment Tribunal. In addition to paying Simon’s legal fees, the FSU drafted in leading civil 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 for free speech, Judge Wyeth declared last week that Mr Isherwood was unfairly dismissed. In a ruling handed down on Tuesday – and picked up by Breitbart, the Epoch Times, MailOnline, the print edition of the Mail, Mail+, the print edition of the Telegraph and Reclaim the Net – the Tribunal found that Simon’s comments did not constitute misconduct, that he did not bring his employer into disrepute, and that “on any reasonable view, the degree of culpability on the part of the claimant was extremely limited”. “In essence,” the ruling continued, his only misconduct was failing to log off from Teams after the training session had ended. The Judge went on to make clear that “[h]owever contentious or odious some might regard the claimant’s comments to be, 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”.
In relation to WMT, Judge Wyeth found that the company “adopted a rigid and blinkered approach to the issue of sanction and certainly did not test or explore the appropriateness of alternatives to dismissal with the claimant in any way”. As to “the crux of this case”, namely whether the decision to dismiss “fell within the band of reasonable responses of a reasonable employer”, the judge stated that he was “in no doubt that it did not”.
As noted, Mr Isherwood’s barrister, Paul Diamond, convinced Judge Wyeth that WMT breached Simon’s speech rights, as the judgement makes clear: “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 and one that is protected by the Convention rights under the Human Rights Act 1998. In this instance however there is the added significance that these views were being expressed in the privacy of the claimant’s home to his wife. They were never intended to be heard by those who attended or ran the course… Whilst undoubtedly contentious, the remarks he expressed (albeit in an unguarded fashion because they were made to his wife) were akin to expressions of views not infrequently heard on radio and television or read in some newspapers.” A date for a remedy hearing to decide compensation, which is likely to be a five-figure sum, or whether Mr Isherwood can have his job back, has yet to be set.
The FSU’s Chief Legal Counsel, Dr Bryn Harris, described the ruling as “a tremendous victory for Simon and for free speech. The judge could not have been clearer – it is not reasonable or lawful to dismiss employees for expressing their own private views, including in relation to training about company ‘values’. Simon showed huge moral courage in standing up against this appalling mistreatment – in doing so he has won a victory for workers all over the country.”
Speaking to the Mail+ Mr Isherwood said, “The only thing that’s kept me going is the support of my family, friends, colleagues, the FSU and my barrister, Paul Diamond — all those who know the real me. They’ve never doubted me or believed I could ever do what I was being accused of. That means the world to me.”
I’m delighted for Simon, but he should never have been put in this position. Too many employers think that saying something that woke activists deem to be ‘offensive’, even if it comes nowhere near to being unlawful, is grounds for dismissal. It isn’t, as the judge in this case has made clear. Forget about diversity training for employees. What we need is free speech training for employers.
The FSU launches its five-point free speech manifesto
We’ve identified our top five policy commitments for the next Prime Minister, and this month we’ve been asking Conservative party members to reach out to Liz Truss and Rishi Sunak with the aid of our new campaigning tool to see where they stand on each of these issues. After all, one of them will be our next Prime Minister and this could be our best chance of extracting a commitment from them that they’ll do everything in their power to defend free speech when they’re in 10 Downing Street.
So far, nearly 4,000 emails have now been sent by our members and supporters over the course of the Conservative leadership campaign. Thanks to the pressure they have been able to exert using this new tool, free speech issues that might have been overlooked have been forced to the forefront of the contest.
Last weekend, for instance, Rishi Sunak attempted to revive his faltering campaign by attacking “woke nonsense”. As reported in the Evening Standard, Mr Sunak said during a speech in West Sussex that he was determined to “protect British freedoms” if he becomes Prime Minister. He then pledged to review the 2010 Equality Act and clarify that gender self-identification does not have legal force, strengthen statutory guidance for schools on how they teach issues of sex and relationships so that pupils are “shielded from inappropriate material”, and protect free speech by amending the Public Sector Equality Duty to “put a stop to practices such as no-platforming” and ensure that organisations “are open and welcoming” to people with differing political opinions and religious and philosophical world views.
I welcome Rishi Sunak’s proposals for “protect[ing] British freedoms” that speak so directly to the issues outlined in our free speech manifesto. He’s right to think these positions are popular – not just among Conservative Party members, but with the general public. This month we commissioned Professor Matt Goodwin to do some polling for us and we published the results here. The headlines are:
When asked whether they agree or disagree with the statement ‘The Government is doing a good job of protecting free speech’, only two per cent say they ‘completely agree’, with 12% saying they ‘somewhat agree’. Among 25–49-year-olds, the number who completely agree falls to just one per cent.
On the Online Safety Bill, which the FSU has been campaigning against, 45% of respondents think that social media companies should not remove or restrict lawful speech, while just 14% think they should.
Fifty-six per cent of people agree with our proposal that free speech should be included among the British values taught in schools, with only seven per cent disagreeing.
The public is broadly supportive of our proposal that there should be stronger legal protections for workers’ rights so employees cannot be disciplined for refusing to take a diversity training course, with 34% agreeing and 26% disagreeing.
On Non-Crime Hate Incidents, 33% agree that investigating people for ‘non-crimes’ takes the police away from more important work, and 29% disagree.
Whatever you think of Rishi Sunak, if you support free speech, you should welcome his attack on “woke nonsense” and his pledge to defend “British freedoms”. Now we just need Liz Truss to make a similar commitment to promoting free speech – although she has already urged the police to spend less time investigating politically incorrect posts on social media and more time on solving real crimes. If you’re a member of the Conservative Party, please take two minutes to email both candidates, using our campaigning tool, and urge them to support our manifesto. If you’re a member of the Conservative Party and you’ve already used the tool, remember that the template can be tweaked to accommodate whatever free speech issues you’d now like to raise with the candidates.
FSU-backed amendment to the Online Safety Bill Accepted by the Government
The FSU, along with other civil liberties groups, is deeply concerned about the Online Safety Bill (you can read our briefing documents here, here and here). For the Government to try to suppress ‘legal but harmful’ content is a breach of a fundamental principle of English Common Law, which is that unless something is explicitly prohibited by law then it is permitted. Moreover, each successive government will be able to add more and more things to this list, creating an anti-free speech ratchet effect.
That’s why during the first week of July, with the bill at a ‘hair’s breadth’ away from the statute book, we wrote to all FSU members and supporters urging them to use our website’s new online campaigning tool to write to their MPs and ask them to urge the Government to postpone the Parliamentary passage of the Bill so the new leader would have a chance to review it (the page is here). The Bill was then at report stage and scheduled to be debated one last time in the Commons before moving to the Lords when we pressed the ‘send’ button on that request for support. The following day, the Government announced the Bill would, indeed, be held over – making it one of the most successful campaigns we’ve ever waged. The FSU believes that in the circumstances it was the right thing to do. This is a complicated, far-reaching piece of legislation that will have a huge impact on what people can (and can’t) say online, and it was surely madness to try to railroad it through while a leadership contest was taking place.
Will the temporary postponement quietly segue into complete abandonment? Much now depends on the focus of our next Prime Minister. If Nadine Dorries is to be believed, the candidate she’s supporting for Party leader, Liz Truss, wants to continue with the Bill ‘as is’ if she becomes Prime Minister (Times), while Rishi Sunak has talked about there being a need to “refine” the legislation (Spectator). My guess is that, sadly, we’ll see the Bill back before Parliament in the Autumn, but probably in some watered-down form.
The fact that it has been delayed is, nevertheless, great news. It provides organisations like the FSU with valuable additional time to keep up the pressure on legislators. Some MPs have already raised concerns about the Bill, including David Davis, Steve Baker and Sir Graham Brady. If members and supporters of the FSU continue to use our new campaigning tool to write to their local MPs, many more will join them. Just click here, copy and paste our template email and send it to your MP, whose contact details our tool can find automatically. It only takes two minutes.
In the meantime, the FSU is looking forward to engaging with the FSU’s allies in both chambers of Parliament to ensure that any final version of the Bill includes much more robust protections for freedom of speech and expression. We have form in this regard, too. Just before the Bill’s progress through parliament was suspended, for instance, several FSU-backed amendments reached the report stage amendment paper and were introduced on the floor of the House of Commons by Adam Afriyie MP.
We’ve been working with Adam on these changes for some time and if the Bill does return we’re hopeful that some of these amendments will be accepted. The Government has accepted one already. Adam tabled an amendment which would make it clear to online providers that they don’t have to do anything about content the Government has designated “legal but harmful”. If they choose, they can just do nothing. And a day later, the Government accepted this amendment – a huge step forward. You can watch Adam introduce all the amendments here, here and here.
The FSU receives a response from the Secretary of State for Education
Back in June, I wrote to the then Secretary of State for Education, Nadhim Zahawi, and the Minister for Universities, Michelle Donelan, to thank them for introducing two essential amendments to the Higher Education (Freedom of Speech) Bill that we campaigned for – removing the caveat “within their field of expertise” from Clause 1, so the new free speech protections apply to academics regardless of whether their speaking or writing about something within their field of expertise or not, and making it harder for “security costs” to be cited by universities or student unions to justify no-platforming a controversial speaker. We’ve now received a reply from the new Education Secretary, the Rt Hon. James Cleverly MP, thanking us for the support we have given the Bill. You can read our original letter and the Secretary of State’s reply here. Over the next few weeks, we’re looking forward to engaging with the FSU’s allies in both chambers of Parliament to ensure that the final version of the Bill includes even more robust protections for freedom of speech and academic freedom.
The long, slow death of non-crime hate incidents
We were partly responsible for another victory last week when the College of Policing unveiled its new guidance on the investigation and recording of non-crime hate incidents (NCHIs), advising the police to exercise more common sense and not intervene in “trivial or irrational” online incidents simply because someone is offended. Earlier this year, the FSU worked with Lord Moylan and other peers on an amendment to the Police, Crime, Courts and Sentencing Bill that would have put an end to the practice of recording NCHIs in such a way that they can show up in an enhanced criminal record check. That amendment was withdrawn when the Government agreed to make its own amendment granting the Home Secretary the option to produce statutory guidance (a “code of practice”) on the recording and retention of personal data relating to NCHIs. Following the passing of that Bill, the Home Office has said the Secretary of State will go ahead and issue this guidance, so the reason the College of Policing has issued new interim guidance is partly to get out in front of this new statutory guidance.
Unfortunately, Hampshire Police didn’t get the memo – and last week dispatched five officers to arrest Darren Brady, an army veteran who’d reposted a meme created by Laurence Fox depicting the Pride flag as a swastika in an unsubtle attempt to highlight the authoritarian way in which the LGBTQ+ agenda is sometimes promoted. Fox himself hasn’t been investigated by the police for posting this meme on Twitter and nor has the Daily Mail for reproducing it. But when Mr Brady posted it on Twitter, someone complained to the police and they duly arrested him. As one officer told him when he was being handcuffed: “Someone has been caused anxiety based on your social media post. That is why you have been arrested.”
It wasn’t just Mr Brady who was arrested. When he asked for help from Harry Miller – the ex-copper who took Humberside Police to court when he was investigated for retweeting a comic verse about trans women and won – Harry took off for Hampshire, stood outside Darren’s house and tried to prevent the police arresting him, pointing out that he hadn’t broken the law. The officers responded by arresting Harry as well. (You can read an article in the Daily Sceptic by FSU co-founder Ian Rons about the incident here.)
But I doubt either Darren or Harry will be charged. Donna Miller, the Police and Crime Commissioner for Hampshire, issued a statement shortly after the double arrest condemning her officers’ conduct. “When incidents on social media receive not one but two visits from police officers, but burglaries and non-domestic break-ins don’t always get a police response, something is wrong,” she said.
Let’s hope the combination of the new statutory guidance from the Home Secretary and Harry Miller’s continuing heroics spell the end of NCHIs.
FSU research suggests little public appetite for new Hate Crime Bill in Northern Ireland
Following Judge Desmond Marrinan’s Independent Review of Hate Crime legislation in Northern Ireland, the NI Department of Justice set up a public consultation process to “inform the development of a Hate Crime Bill”, as the Belfast News Letter put it this week. The consultation ended on 28th March, although policy makers surely must take into account the findings from a new opinion poll carried out by LucidTalk on behalf of the Free Speech Union. The headline news is that there’s little public appetite for a Hate Bill in Northern Ireland and considerable anxiety that it would have a chilling effect on free speech: 81% of respondents said they have not been a victim of a hate crime in the last 12 months; 79% felt that some people being offended some of the time is a price worth paying for freedom of speech, and when asked whether they think people being too easily offended is a problem in Northern Ireland, only 10% said it isn’t a problem, with 44% saying it’s a major problem.
Just as concerning is the finding that the Bill would likely exacerbate sectarian tensions in Northern Ireland and endanger the peace process. Our poll revealed a significant gulf in the attitude of nationalists and unionists towards the proposed legislation: 85% of Sinn Féin voters supported more severe punishment for crimes motivated by hatred of a victim’s protected characteristics, compared to just 44% of DUP voters; 90% of DUP respondents felt less free to express their personal beliefs than they were 10 years ago, compared to just 43% of Sinn Féin voters; and 85% of Sinn Féin voters supported more severe punishment for crimes motivated by hatred of a victim’s protected characteristics compared to just 44% of DUP voters. What’s particularly worrying is that the Bill would make some forms of sectarianism a hate crime – and DUP voters think they’re much more likely to get into trouble for saying something which is misinterpreted as ‘hate speech’ (83%) than Sinn Féin voters (35%).
The FSU writes to Lancaster City Council regarding the no-platforming of Roy ‘Chubby’ Brown
We’ve written to the Leader of Lancaster City Council, Councillor Jackson, urging her to reconsider the cancellation of Roy ‘Chubby’ Brown’s forthcoming performance in Morecambe. As the Mail reported earlier this month, the controversial 77-year-old comedian was due to perform at a council-run venue in August, but the show was cancelled after a total of 59 people signed a petition calling for Chubby Brown to be no-platformed.
As we pointed out in our letter, the FSU take no view on Chubby Brown’s comedy routine, just as we do not advocate for specific points of view. What we do believe, however, is that unless laws are being broken, as opposed to some people finding something distasteful, members of the general public are mature enough to make up their own minds on what they wish to watch, read or listen to. The Lancaster Post and Lancs Live have both now reported on the FSU’s intervention and we hope that this local press coverage will encourage Lancaster Council to do the right thing and allow the people of Morecambe to decide for themselves whether Chubby Brown’s set is worth the price of a ticket or not. You can read our letter in full here.
Maureen Martin and the case for amending the Employment Rights Act 1996
The FSU is campaigning for an amendment to the Employment Rights Act 1996 to make it impossible for companies to discipline staff for saying non-woke things outside of the workplace. The case of Maureen Martin demonstrates exactly why that change is needed. As I explained on GB News (and also in the Mail), Maureen was fired from her job at housing association L&Q because she said things about marriage that some people judged politically incorrect. Ms Martin was campaigning to become mayor of Lewisham in South-East London when she published a ‘six-point plan’ of action that was posted to the borough’s 205,000 registered voters. One of those six points expressed the orthodox Christian view that “natural marriage between a man and a woman is the fundamental building block for a successful society, and the safest environment for raising children”. Sensing an opportunity, local LGBT activists eagerly moved in for the cancel, reproducing an image of her leaflet on Twitter, accusing her of ‘hate speech’ and demanding she be dismissed. Despite an unblemished 13-year-record, her employer duly obliged, sacking Maureen for breaching the company’s social-media policy and bringing L&Q into disrepute. Needless to say, L&Q is a member of Stonewall’s Diversity Champions programme.
As FSU Deputy Director Ben Jones pointed out – also on GB News – the details may differ, but the pattern is becoming very common: “This week alone, we have more than 80 live cases where we are helping people in situations like Maureen’s, where they’ve lost their job for expressing often very mild views.” Last year, for instance, we helped Jeremy Sleath, who’d been fired by West Midlands Trains for celebrating the reopening of the pubs on ‘Freedom Day’ by saying on Facebook that he didn’t want to live in a ‘Muslim alcohol-free caliphate’ for the rest of his life. It didn’t matter that he’d said it outside the workplace on a personal account. Like Maureen, he was dismissed for breaching social-media policy and bringing the company into disrepute. With our help, Jeremy fought back in court and got a judgement of ‘unfair dismissal’ – just like Simon Isherwood.
The organisation Christian Concern is currently helping Maureen take legal action against L&Q, and I suspect they’ll be equally successful, not least because under the Equality Act 2010 expressions of religion or belief are protected, meaning you cannot be fired for expressing an orthodox religious view, however distasteful some might find it. That said, 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 recent legal case, for example.) That’s why we believe the Employment Rights Act needs amending to make it impossible for employers to sack employees who say something lawful outside the workplace. Something else we’d like to see is a statute of limitations on what people can be investigated for even if they say it in the workplace. In recent years, we’ve seen the rise of what the author Freddie deBoer has called “offence archaeology”, with people going back many years to try and find things people have said that are supposedly offensive in order to get them disciplined, sacked or cancelled. (Telegraph, Spiked, Spectator). Like libel and slander, we’d like to see a 12-month statute of limitations on what you can be investigated for.
General fighting fund
This month we’ve helped people from all walks of life, with cases ranging from people being kicked off social media for questioning gender ideology, to members losing their jobs and livelihoods for comments made outside of work. People contact us every week who never imagined they’d need our support. Help us to help them: if you can, please donate to our general fighting fund.
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Kind regards,
Toby Young