Automated Summary
Key Facts
The London Borough of Hammersmith and Fulham dismissed Mr. Keable for serious misconduct following comments he made at a political rally in 2018. His remarks, which included assertions about Zionists collaborating with Nazis and Jews not being acceptable in certain contexts, were filmed without consent and circulated on social media. The Employment Appeal Tribunal found the dismissal procedurally and substantively unfair due to the Council's failure to inform Keable of the specific allegations (e.g., the interpretation of his comments as Holocaust-related collaboration) and to consider lesser sanctions like a warning. The Tribunal referenced Smith v Trafford Housing Trust [2013] IRLR 86, emphasizing that lawful political expression outside work, even if offensive to some, does not justify dismissal absent a fair process. Reinstatement was ordered as the remedy.
Issues
- The Tribunal concluded that the Council's disciplinary process was procedurally unfair because the employee was not made aware of the specific allegations, such as the interpretation of his comments about Zionists collaborating with Nazis, and was not given an opportunity to address them. This failure to follow fair procedures was a key factor in the unfair dismissal determination.
- The Tribunal assessed whether the dismissal was substantively fair, determining that the employer's belief in the employee's misconduct was not based on reasonable grounds. The employee's comments, made in a private conversation without his consent being recorded, were not found to be discriminatory or racist, and the employer's interpretation was not objectively reasonable. This led to the conclusion that the dismissal was outside the range of reasonable responses.
- The Tribunal ruled that reinstatement was a practicable remedy, noting that the Council had not lost trust in the employee. The employee's long, unblemished disciplinary record and his acceptance of the need to be cautious in future comments supported the decision. The Tribunal emphasized that the primary remedy should be considered unless impracticable, which was not the case here.
Holdings
- The Tribunal held that the Council's reliance on the video clip for dismissal was procedurally unfair. Mr. Austin, the dismissing officer, did not put the specific interpretation of the Claimant's comments to him, nor did he consider whether a lesser sanction (e.g., a warning) was appropriate. The Tribunal stressed that a fair process requires employees to know the case against them and to have an opportunity to respond, which was not fulfilled in this instance.
- The Employment Appeal Tribunal found that the dismissal of Mr. Keable was both procedurally and substantively unfair. The Tribunal concluded that the Council's disciplinary process failed to provide the Claimant with a fair opportunity to respond to the specific allegations, particularly regarding the interpretation of his comments as suggesting Zionists collaborated with the Nazis in the Holocaust. The Tribunal emphasized that the employer's actions were outside the range of reasonable responses, citing similarities to the Smith v Trafford Housing Trust case, where lawful political expression was protected.
- The Tribunal determined that reinstatement was a practicable remedy. It concluded that the Council had not lost trust and confidence in the Claimant, as evidenced by the lack of objections from managers or elected members and the Claimant's acceptance of responsibility for his language during the disciplinary hearing. The Tribunal found no breakdown in the employment relationship despite the dismissal for 'serious misconduct'.
Remedies
The Tribunal made an order for reinstatement, directing the Council to reinstate the Claimant to his position as a Public Protection and Safety Officer. This remedy was granted after the Tribunal found that the Council had not lost trust and confidence in the Claimant, despite his dismissal for serious misconduct, and that reinstatement was practicable given his good disciplinary record and the Council's acceptance of his evidence.
Legal Principles
- The court emphasized the importance of a fair disciplinary process, requiring employees to be informed of specific allegations against them and given an opportunity to respond. The dismissal was found to be procedurally unfair because the employer failed to provide the employee with clear notice of the misconduct claims and did not allow him to address the specific interpretation of his statements that led to dismissal.
- The court highlighted that an employer's belief in an employee's misconduct must be based on reasonable grounds. In this case, the employer's belief was not supported by sufficient evidence, as the dismissing officer did not verify the interpretation of the employee's comments or consider whether lesser sanctions were appropriate, leading to a substantively unfair dismissal.
Precedent Name
- Smith v Trafford Housing Trust
- CJD v Royal Bank of Scotland
- Game Retail Ltd v Laws
- Thomson v Alloa Motor Co Ltd
- Stanley Cole (Wainfleet) Ltd v. Sheridan
Cited Statute
Employment Rights Act 1996
Judge Name
- Mr D G Smith
- Mr C Edwards
- Her Honour Judge Katherine Tucker
Passage Text
- The EAT dismissed an appeal against a Tribunal's decision that the Claimant had been unfairly dismissed.
- The Judge was entitled to conclude that the dismissal was unfair. She concluded that there were relevant and significant errors in the procedure adopted by the Council employer, including the fact that the Claimant was not informed of the specific allegation which led to his dismissal and the fact that the possibility of a lesser sanction, a warning, was not discussed with him.
- The Claimant was dismissed for serious misconduct arising out of comments he made in a conversation with another individual when they each attended different rallies outside Parliament.