Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing the issues raised by a recent case involving somebody with anxiety that was triggered by outside of work things but was impacting upon their employer.
Anna Denton-Jones
Refreshing Law
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 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 controversial statements alleging the Zionist movement, prior to World War II, collaborated with the Nazis.
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 (human rights). 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:
The Tribunal found that he should be reinstated.
Whilst the case illustrates the sorts of issues employers are now getting embroiled in around social media and freedom of expression, 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 decisionmaker 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 and the making of 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 here and before writing the disciplinary letter the writer should be thinking ahead to the evidence and what it does/doesn’t prove.
In this case, the employee quite reasonably asked which of his comments that had been recorded was offensive as this is what had been put in his invitation letter. The decisionmaker was thinking instead about the case in terms of his having suggested Zionists collaborated with the Nazis in the Holocaust – that was not put to the employee. 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.
What can you do about this?
If the decisionmaker, 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 then invite the employee to a further meeting to discuss the fresh allegation that they wish to consider and it 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. They should then come 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 a pre-requisite to consult the employee about that…
The safest thing to do is, routinely in disciplinary hearings, consider whether a warning would be an appropriate sanction and be seen to explain why it wouldn’t.
Anna Denton-Jones
Refreshing Law
Each year in November we focus on a specific topic in depth. This year we focus on ‘Constructive Dismissal’. Here are the links to each edition:
Knowledge November 2021 – Week 1 covers an introduction to the topic:
https://mailchi.mp/ff1178f15115/welcome-to-knowledge-november-refreshing-law-5374561
Knowledge November 2021 – Week 2 covers Constructive Dismissal – Fundamental breach of contract:
https://mailchi.mp/5b70ce97b43e/welcome-to-knowledge-november-refreshing-law-5577949
Knowledge November 2021 – Week 3 covers Constructive Dismissal – Causation:
https://mailchi.mp/9b38225cac66/welcome-to-knowledge-november-refreshing-law-5577953
Knowledge November 2021 – Week 4 covers Constructive Dismissal – Affirmation:
https://mailchi.mp/2d4f922538b3/welcome-to-knowledge-november-refreshing-law-5577957
Anna Denton-Jones
Refreshing Law
Last year, a university law lecturer at BPP University named Elizabeth Aylott was constructively unfairly dismissed and unfavourably treated because of something arising from her disability, despite the fact that other disability related claims were dismissed. She suffered from autistic spectrum disorder, anxiety and depression, which were her disabilities.
A member of the management team talked about her with a colleague and referred to her as a good worker but “mad as a box of frogs”. This comment then got back to her.
She found herself working very long hours including weekends and evenings.
A complaint resulted in a breakdown in the relationship with her employer, in particular, the employer did not allow her to see the complaint or defend herself.
Those three acts were found to be unfavourable treatment, as was the failure to refer her to occupational health.
Other concerns involved a crass and insensitive remark made about how she should have been able to handle her workload – this was inappropriate in the context of what was clearly a poor mental state.
Her employer was found to have failed to reduce her workload or provide extra support or heed any of the indications that she was not coping. Given the numbers of people who are experiencing challenges through the pandemic, you can see how easily an employer can fall into this trap and be found to be guilty of failing to do the right things.
Whenever anybody is complaining of their workload, the hours that they are working or exhibiting other signs that they are suffering from stress and not coping, which could be falling productivity, unusual disengagement or irritability and being more sensitive than normal in relation to normal day to day work related matters, an employer should be considering what they can do to support the employee.
One of the interesting things in this case, is that the employee found a job fairly quickly, so within a 3 month period of her having resigned. However, the Employment Tribunal still awarded her £71,000 worth of compensation for future losses (presumably her new job did not pay as much), £32,000 for past financial losses – so bridging the gap between the jobs, and £20,000 for injury to feelings. The Judge noted that the discriminatory conduct had been integral as to why she chose to resign and that although she had commenced working elsewhere, she remained unwell throughout the period up to the Hearing, when she was able to talk about how the treatment she had received had affected her. This shouldn’t be underestimated.
Managers need to be aware that during a Section 15 of the Equality Act claim that somebody has suffered from discrimination arising from a disability, they need to do the following:
Anna Denton-Jones
Refreshing Law
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