Dispute Management Archives

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 employee had not been informed of the specific allegation which led to his dismissal; and
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 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

So imagine you’ve just suspended an employee and packed them off with their letter setting out the terms of their suspension. You now need to address their reporting lines and it can be tempting to write an email to staff perhaps even telling them that their colleague has been suspended. I currently have an Employment Tribunal file on my desk where the communication to colleagues that took place immediately following suspension is something that the employee has leapt on in order to claim that minds were made up, his dismissal was entirely pre-judged from the moment of suspension and that trust and confidence would have been broken at that point in time.

I suggest instead that you speak to employees. The reason that I am suggesting speaking to colleagues is that you will not then have paperwork which will form part of any data protection subject access request when it is inevitably made.

When you speak to the colleagues you should inform them that their line management is temporarily changing and explain who they are now reporting to and, if they are required to take on some of the suspended employee’s duties, state this fact. You would reference the suspended employee as being temporarily absent from work. Curious colleagues are bound to ask why but I would just say that this is “confidential”. You can always bat it back to the colleagues by saying that if it were the other way around, they would want confidentiality to be protected and when most people think about it like that, they can understand.

You may be worried about the suspended employee trying to affect the investigation in some way by speaking to their colleagues. If that is the case there is nothing wrong with you, when you have this conversation, explaining to employees that there is nothing wrong with them having purely social contact with their absent colleague but they should not be discussing work with them.

It is entirely possible that the suspended employee themselves will tell all and sundry that they are being suspended and they are being investigated. If that is the case and people are querying the position, then you are free to confirm that you would have preferred to keep the matter confidential but now that they employee has explained to them, that yes there is an investigation and they are duty bound to co-operate with that investigation if they are called to do so. I wouldn’t go into any details about what the investigation is about.

In general, I would leave it to the investigator to plan out how they are going to conduct their investigation, who they are going to speak to and to brief any witnesses in terms of issues around co-operation with the investigation, confidentiality, the fact that the suspended employee may well get to see an investigation report etc.

Anna Denton-Jones
Refreshing Law

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