Unmuted mic error results in unfair dismissal

Long serving employee

Mr Isherwood (I) began working for West Midland Trains (WMT) in September 2009 and had an unblemished work record. In January 2021 I voluntarily attended a Zoom webinar which WMT was offering on the subject of white privilege.

I attended the webinar using his mobile phone from his home in his own private time, having already finished his shift earlier in the day.

Open mic error

I inadvertently left his microphone unmuted. At the end of the webinar, he was heard to say: “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, do 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…”.

I was making these comments to his wife. A manager from another train company who overheard them made a complaint to WMT and I was suspended.

Complaint made

I apologised immediately for his unmuted microphone error, his swearing and any offence caused. He explained that the first part of his comments were unrelated to the webinar; at that point, he was responding to a note his wife had placed in front of him that said: “Have you phonedthe oven man?” (their appliance was broken).

I also maintained that his question about black privilege was “a genuine one, intended to help him understand better” .

No offence intended

WMT ignored I’s explanations and sacked him for causing offence; bringing the company into disrepute and breaching its equality, diversity and inclusion policy. I claimed unfair dismissal .

The tribunal has now ruled that, even though he could be overheard, I was privately expressing a personal opinion and his dismissal breached the right to freedom of expression enshrined in the Human Rights Act 1998 (click here ).

An unfair dismissal

The tribunal criticised WMT for not considering any disciplinary sanctions short of dismissal, e.g. a written warning. This was more appropriate based on I’s unblemished work record, sincere apology and explanations. Compensation for I’s unfair dismissal will be determined at a later date.

Tip. Where an employee makes a genuine mistake with an unmuted microphone and they immediately and sincerely apologise for any offence caused, you’re unlikely to have grounds for their dismissal. However, it’s still worth reminding attendees at the start of online events what can happen if they don’t keep a close eye on the mute button.

Tip. Those who facilitate online meetings should be reminded that they can mute attendees when they aren’t personally speaking and this can be set as the default setting. As well as reducing background noise and distractions, this limits the possibility of private conversations being overheard.