The Employment Appeal Tribunal has upheld a first-tier decision that the dismissal of an employee for his conduct at a political rally, attended in his own time and in a personal capacity, was unfair.
Mr Keable was dismissed on notice by London Borough of Hammersmith and Fulham for misconduct stemming from comments he made at a 2018 demonstration concerning anti-Semitism in the Labour party. Mr Keable attended the counter-demonstration and he was filmed, without his consent, having a debate with an opposing demonstrator. During this conversation, he expressed controversial views including his view that the Zionist movement collaborated with the Nazis. The film clip was shared widely on social media, without Mr Keable’s consent, which led to him being identified as a Council employee.
The employment tribunal found that Mr Keable’s dismissal was unfair on two key grounds:
Firstly, the dismissal was procedurally unfair as the reason for the dismissal was different to the allegations put to Mr Keable in the disciplinary investigation. During the investigation, Mr Keable was told that the two comments he made which were most likely to cause offence were that “the Zionist movement collaborated with the Nazis" and that the Zionist movement “accepted that Jews were not acceptable here.” However, he was dismissed on the basis that “the average person would interpret [his] comments as suggesting the Zionists collaborated with the Nazis in the holocaust.” He did not have a chance to challenge this interpretation and so the dismissal was procedurally unfair.
Secondly, the dismissal manager had not acted within the “band of reasonable responses” by failing to consider if a warning would have been appropriate. The dismissal manager assumed Mr Keable would not heed a warning as he felt Mr Keable believed he had an “absolute right to offend” and so would repeat the same misconduct. This was contradicted by Mr Keable’s evidence.
The Tribunal also commented that the dismissal was outside the band of reasonable responses because Mr Keable had made the comments in a personal capacity, did not publish the comments or consent to publication and the Council had not found the comments to be discriminatory, racist or unlawful. The Tribunal ordered for Mr Keable to be re-instated.
The EAT held that the Tribunal had been entitled to reach the decision that Mr Keable’s dismissal was unfair in these circumstances and was entitled to order re-instatement.
This case is a reminder to employers of the importance of ensuring that employees are given the opportunity to respond to all allegations during the disciplinary process and that the reason for dismissal is consistent with the allegations put to the employee. It also reminds employers of the need to consider whether a lesser sanction is appropriate, particularly where the severity of the misconduct is not clear-cut.
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