Refreshing Law
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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
The main risks
Anyone sacking a member of their staff faces three main types of potential push back by their ex member of staff. Firstly, the employee may claim they have not received the correct notice pay or other sums owed to them, secondly, they may claim unfair dismissal, once they have 2 years’ service and thirdly, they may claim discrimination.
Unfair dismissal claims are capped at 1 years’ salary or £74,200 compensatory award and a further basic award of up to £13,500 – depending on financial losses of the employee but discrimination awards are uncapped and may include damages for injury to feelings up to £36,000. That said, it is important to note that average awards are much less – between £4-5,000 for unfair dismissal and £12,000 for discrimination.
So how can you protect yourself?
Key advice is: Put yourself in the employee’s shoes and think about how you would want to be treated. If you follow that commonsense rule you shouldn’t go too far wrong eg:- you are likely to investigate the situation thoroughly, listen to all sides including the employee before making a decision and not jump to conclusions. Canny employers draft a provision into the contract of employment enabling them to suspend an employee pending an investigation – this protects the business for example, a disgruntled employee cannot then contact customers or destroy computer evidence relevant to the investigation.
Follow a procedure – for unfair dismissal purposes you have to show that not only did you have a good reason to dismiss (such as the person being incapable of doing their job or guilty of misconduct) but you have to show that you have acted “fairly and reasonably in all the circumstances”. This certainly means following the basic steps outlined above but the ACAS Code of Practice on Discipline and Grievance should be the employers’ touchstone here – Employment Tribunals judge you by this standard and expect you to be familiar with it – it also contains handy flowcharts.
Whilst employees are entitled to bring a companion along to a meeting in which they are dismissed (a colleague or trade union official) you may also want to take a witness along. This person could help you take notes of the meeting but is also there to protect you as they can confirm you acted fairly if challenged.
So where do people tend to go wrong?
The most common mistakes are:
Anna Denton-Jones
Refreshing Law
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