Should making political comments outside of work result in dismissal for serious misconduct?
Mr Keable worked for the London Borough of Hammersmith and Fulham as a public protection and safety officer in the council’s environmental health department. There was agreement that he was good at his job and that, before the matters leading to the dismissal, he had a clean disciplinary record. He had worked for the council for 17 years.
Mr Keable was known by the council to be a ‘political activist’ and the role that he was in was not a politically restricted role.
On 26 March 2018, two rallies took place outside Parliament – one organised by Enough is Enough and the other by Jewish Voice for Labour. Mr Keable was involved in the Jewish Voice for Labour rally.
During the rally, Mr Keable spoke to an individual attending the rally organised by Enough is Enough. The conversation was partly filmed without Mr Keable’s consent.
During the conversation, Mr Keable stated that ‘the Zionist movement collaborated with them [the Nazis]’ and that ‘the Zionist movement from the beginning was saying that they accepted that Jews are not acceptable here’.
Part of the footage was later posted on the Twitter account of David Grossman, a BBC Newsnight journalist, with the caption ‘Anti-Semitism Didn’t Cause the Holocaust and Zionists Collaborated with the Nazis’. Mr Grossman did not make any reference to the council or Mr Keable’s employment by the council. The post attracted a number of comments. Mr Greg Hands, MP for Chelsea and Fulham, shared the Twitter post on his own Twitter feed and stated:
‘Many report that this is Stan Keable, the local momentum organiser in Hammersmith & Fulham. If so, will (the Labour MP for Hammersmith and Fulham) and (the Labour leader of London Borough of Hammersmith and Fulham) investigate and urge action?’
The video then came to the attention of councillor Steven Cowan, the Labour leader of the Council. Mr Cowan sent an email to senior council officials stating that he believed that Mr Keable had brought the good name of the council into disrepute and had committed gross misconduct.
Disciplinary investigation
On 27 March 2018, Mr Keable was suspended, and a decision was taken to investigate the allegations.
Mr Smith, Head of Policy and Strategy, carried out an investigation and his conclusion was that the matter should proceed to a disciplinary hearing.
Disciplinary hearing
Mr Keable was called to a disciplinary hearing, chaired by Mr Austin, Director of the Council’s Residents Service.
Mr Austin concluded that Mr Keable was guilty of serious misconduct and was dismissed with notice on 21 May 2018. In the letter of dismissal, Mr Austin referred to the council’s code of conduct and the provisions which required employees to avoid conduct either inside or outside of work which might discredit the council. He went on to write:
‘I think…The average person would interpret your comments as suggesting that Zionists collaborated with the Nazis in the Holocaust and is likely to cause offence.’
Mr Keable appealed against his dismissal, emphasising his length of service and previously clear disciplinary record.
Disciplinary appeal
The appeal was heard by Mr Mark Grimley, Director of Corporate Services, who dismissed the appeal.
Findings at the employment tribunal (ET)
The ET found that Mr Keable’s dismissal was unfair for reasons it set out under two headings:
- Proper hearing – opportunity to put claimant’s case.
- Reasonableness of decision to dismiss.
Proper hearing – opportunity to put claimant’s case
The ET found that ‘the investigation and disciplinary process was unfair and outside the range of reasonable responses of a reasonable employer’. This was because the actual basis for the dismissal was different to the allegations Mr Keable was informed of during the investigatory and disciplinary process. The chair of the disciplinary panel, Mr Austin, dismissed Mr Keable because he concluded that:
‘the average person would interpret the Claimant’s comments as suggesting that Zionists collaborated with the Nazis in the holocaust.’
However, Mr Austin had not raised that interpretation with Mr Keable at the disciplinary hearing. The judge also concluded that Mr Austin did not have reasonable evidence on which to base the above conclusion.
Reasonableness of decision to dismiss
The ET stated that the council acted well beyond the range of reasonable responses of a reasonable employer in deciding to dismiss Mr Keable given:
- Mr Keable had made the comments outside the workplace in his private capacity.
- Mr Keable did not himself publish the comments.
- The council did not find the comments to be discriminatory, anti-Semitic, or racist.
- The comments were not alleged to be unlawful or criminal or libellous.
- The comments were not alleged to have been expressed in an abusive, threatening, personally insulting, or obscene manner.
- Mr Austin acknowledged that Mr Keable had the right to attend demonstrations in his own time and express his own opinions.
The ET concluded that reinstatement was practicable in all these circumstances.
The council submitted an appeal.
Findings at the employment appeal tribunal (EAT)
The EAT in London Borough of Hammersmith and Fulham v Mr SE Keable held that the employment tribunal judge was correct in concluding that the dismissal was unfair, due to significant errors in the procedure adopted by the employer.
The council put forward grounds of appeal relating to the decision that Mr Keable had been unfairly dismissed and the remedy decision of reinstatement.
Was the dismissal fair?
The council submitted that it was open to Mr Austin to decide what was likely to cause offence to the average person. They also stated that Mr Keable had been informed of the nature of the alleged misconduct because at the heart of the allegation was the contention that his comments had had the potential to bring the council into disrepute.
The council also submitted that Mr Keable had been informed of the nature of the misconduct alleged.
The EAT referred to principles set out in s98 of the Employment Rights Act 1996, which states that an employer first needs to establish that the dismissal is for a potentially fair reason and, if established, the ET will determine whether that dismissal was fair or unfair.
The EAT held that the ET was correct in concluding that:
‘It was outside the range of reasonable investigations for an employee not to know, before they are dismissed, the nature of the misconduct alleged against them.’
and that Mr Austin should have given Mr Keable an opportunity to respond to the interpretation Mr Austin had reached of the words spoken.
The EAT stated that the purpose of a fair procedure is not a ‘tick box’ exercise. A fair procedure should seek to ensure that an individual has the opportunity to convey relevant information to the decision maker before a decision is taken.
Remedy
Relating to the remedy of reinstatement, the first ground of appeal made by the council was in respect of the conclusion made by the ET that ‘it was plain that the council had not lost trust and confidence in the Mr Keable. The council asserted that the fact that he was dismissed because of misconduct demonstrated that the council had lost trust and confidence in Mr Keable.
The second ground was that the ET had failed to explain why it was practicable to reinstate given the relevant case law guidance suggests that the remedy of reinstatement would only be made in exceptional circumstances.
The EAT held that it does not automatically follow that because the dismissing officer genuinely believed that Mr Keable had been guilty of misconduct, that the council had lost trust and confidence in him. They also stated that it does not automatically follow that if a decision is later found to be unfair, that reinstatement is impracticable.
Summary
This case is another example of the importance of following a fair procedure throughout a disciplinary process. It highlights one of the essential elements of a fair process, as stated in the Acas code of practice:
‘Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made.’
Schools should ensure that their disciplinary policy follows a fair and transparent process and that any investigation and subsequent disciplinary hearing adheres to this policy. In addition, schools should ensure that they have followed the Acas code fairly: an employment tribunal will take this into consideration.
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