In the case of London Borough of Hammersmith and Fulham v. Keable, the Employment Appeal Tribunal (EAT) upheld the decision of the Employment Tribunal (ET) that a claimant who made controversial remarks on Zionism was unfairly dismissed, in part because he was not given an opportunity to respond to the specific allegation relied upon for his dismissal.

Facts

The Claimant was employed by the Respondent council as a public protection and safety officer. This was a “non-politically restricted role” which meant that he was able to participate in political activities. In March 2020, he attended a rally outside the Houses of Parliament, during which he was filmed making controversial comments linking the Zionist movement to the Nazi movement. The recording of this conversation was subsequently posted on social media without the Claimant’s knowledge or consent. There was nothing in the footage itself which would enable the viewer to identify the Claimant as a council employee. However, after the video gained widespread attention on social media, one of the Respondent’s councillors recognised the Claimant and reported him to the Respondent.

The Respondent promptly initiated disciplinary proceedings, which resulted in the Claimant being dismissed on notice for serious misconduct. The Claimant subsequently brought an employment tribunal claim for unfair dismissal.

ET and EAT decision

The ET held that the dismissal was both procedurally and substantively unfair. The EAT agreed with this judgment, dismissing the Respondent’s appeal.

One of the determining factors in this judgment was that, throughout the disciplinary proceedings, the Claimant was never informed of the specific basis upon which the Respondent relied to make the dismissal. During the investigation, the Respondent stated that it was the comments themselves that were offensive and this was the reason for the disciplinary action. However, the dismissing officer had said that the reason for the dismissal was that a “reasonable person” would interpret the Claimant’s comments as suggesting that the Zionist movement collaborated with the Nazis in the Holocaust. That interpretation was not put to the Claimant. The Judge made it clear that, for a dismissal to be fair, the employee should know the case against them and should also be given an opportunity to respond. In this claim, the Claimant should have been expressly informed of the dismissing officer’s interpretation of his comments and he should have been given a genuine opportunity to respond to it.

The Judge also held that it was unsafe to say that any “reasonable person” would have the same interpretation of the Claimant’s comments as the dismissing officer, since nobody else involved in the investigation had come to the same conclusion and the dismissing officer did not have any other reasonable evidence from other sources to support it.

The Respondent was also criticised for not giving the Claimant an opportunity to comment on the possibility of a warning as an alternative to dismissal. Although the Respondent had considered giving a warning, it had concluded (without actually putting it to the Claimant) that the Claimant would not be willing to comply. The ET held that this contributed to the dismissal being procedurally unfair.

The EAT upheld the ET’s decision, reiterating that an employee must know the nature of the misconduct alleged and have an opportunity to respond.

After awarding judgment in favour of the Claimant, the ET made a reinstatement order. The EAT held that the ET was entitled to do so, making it clear that a conduct dismissal does not automatically mean that reinstatement was not an appropriate remedy.

Comment

This case demonstrates the importance of ensuring that a fair and thorough process is always followed in disciplinary proceedings. In particular, employers should always ensure the employee is informed of (and understands) any allegations against them and that they are given a genuine opportunity to respond.

Employers also need to be mindful of the risks of bringing disciplinary proceedings against employees for conduct or comments made outside the workplace. The ET judge drew attention to this point in the present claim, noting that the relevant comments were made outside the workplace in a private capacity. The ET held that the Claimant was entitled to express his own opinions in his free time, especially given there was nothing to link the Claimant to the Respondent. This is a reminder that employers need to be wary when considering taking disciplinary action and should seek advice if they are not sure whether there is a sufficient connection between the conduct and the individual’s employment.