A recent case that went to the Employment Appeal Tribunal highlights important issues for employers. The case of London Borough of Hammersmith & Fulham v Keable involved a local authority Public Protection and Safety Officer within the Environmental Health Department with 17 years’ service who was dismissed for serious misconduct arising out of comments he made at rallies outside parliament. The employee concerned had been filmed having conversations. That video made itself online without his knowledge or consent. He didn’t do anything to link his employment to the video. As a result of it being widely re-tweeted, he was publicly identified as the local authority’s employee.

The employee was an anti-Zionist and a member of the Labour Party and Momentum organiser who was attending the rally in his own personal time. The comments he was filmed making included alleging the Zionist movement, prior to World War II, collaborated with the Nazis and that the Zionist movement had accepted that Jews were not acceptable there.

The Tribunal found that the videos were calm, reasonable, non-threatening and conversational. The employee explained that he didn’t intend to offend anyone – it was a private conversation involving an exchange of political opinions carried out between two people willingly.

A local councillor wrote to the employer calling for action against the employee so he was suspended and a disciplinary procedure was followed that led to his dismissal.

The employer acknowledged that the employee had freedom of assembly and expression which included a right to offend others. However, it found that his comments were likely to be perceived as unlawfully hostile on religious grounds and so brought the employer into disrepute. The Dismissing Officer didn’t find the employee had been guilty of discrimination or anti-Semitism but did find that “a reasonable person would conclude that the claimant had said that the Zionists had colluded with the holocaust”.

At the Employment Tribunal, whilst the Claimant’s conduct was potentially a fair reason for dismissal, procedurally the employer was found wanting – in particular:

  1. The employee had not been informed of the specific allegation which led to his dismissal; and
  2. The possibility of a lesser sanction of a warning wasn’t discussed with him.

The Tribunal found that he should be reinstated.

Whilst the case illustrates the sorts of issues employers are now getting embroiled in, what caught my eye was the basic weakness in the employer’s procedure ie:- that what the employee was accused of didn’t tally with what the decision-maker ultimately dismissed him for. This isn’t uncommon. Often the allegations are framed at the stage where an employee is perhaps suspended pending investigation or a statement is made that covers a multitude, such as “your conduct in being filmed making comments”. The disciplinary invite letter might be prepared centrally by HR from a template without any real liaison with the person who is potentially going to be making the disciplinary decision. There is always room for error and before writing the disciplinary invite letter we need to be looking at the potential evidence from a slightly different angle ie:- what the evidence suggests we might be able to prove. The person who is going to be make the decision either needs to be involved or you end up with a potential ‘gap’ where the invite letter says one thing and the decision-maker wants to do something else.

In this case, the employee asked which of his comments that had been recorded was offensive as this is what had been put in his invitation letter.

However, the decision-maker was thinking about the case in terms of his having suggested Zionists collaborated with the Nazis in the Holocaust and that was not put to the employee at the disciplinary hearing.

The Tribunal easily found it was outside the range of reasonable responses to dismiss somebody for misconduct which hadn’t been put to them as part of the investigation or disciplinary process. I’m sure you’d agree that was fair.

What can you do about this?

If the decision-maker, having heard all of the evidence, wants to frame the outcome in a different way to the disciplinary allegations in the invitation letter, they should pause the process. They should explain they believe the allegations haven’t been put correctly. Explain what they believe should have been done instead and then invite the employee to discuss it with their representative in an adjournment, so that they can prepare their response. That might of course mean delaying to a different day. The further meeting to discuss the fresh allegation may well be a relatively short meeting given all of the discussions that have already been held but it will be as important for the employee to be accompanied at the meeting as normal and be able to have their say before the decision-makers comes to their decision.

Compensation was reduced by 10% because of the employee’s culpable conduct in making critical comments about the investigation report.

The employer appealed. Interestingly the Employment Appeal Tribunal upheld that it was procedurally unfair to not have raised with the Claimant whether a warning was appropriate. Any employee, when questioned, would always say that a warning was preferable to dismissal. This is stretching the requirements of the ACAS Code of Practice. Yes, an employer should consider the appropriate lesser sanction as an alternative to dismissal but it is not normally a pre-requisite to consult the employee about that. Given this new ruling the safest thing to do is, routinely in disciplinary hearings, consider whether a warning would be an appropriate sanction and to ask the employee for their views.

Refreshing Law
7 January 2022