The EAT has held that an employer should have proactively consulted with an employee, who had blameless long service, during disciplinary proceedings about whether a warning would have been a sufficient sanction instead of dismissal.
The facts
Mr Keable, a political activist, was employed by the London Borough of Hammersmith and Fulham for about 17 years. He did not hold a “politically restricted post”, meaning that he was not restricted by his employment from being politically active.
Mr Keable was dismissed for serious misconduct after exchanging words at a political rally with another demonstrator about the relationship between Zionism and Judaism. The exchange was filmed without his consent and shared on social media. It was retweeted some 79,000 times, generating a great deal of debate about anti-Zionism and anti-Semitism, including some criticism of the Council for not taking action against him. The social media exchanges came to the attention of the Labour leader of the Council, who wrote to senior Council officials, saying “I believe that this has brought [the Council] into disrepute and committed gross misconduct. Please have this looked at immediately and act accordingly and with expediency….” Mr Keable was suspended, and following an investigation and a disciplinary process, dismissed for serious misconduct. His internal appeal was unsuccessful.
Mr Keable claimed in the employment tribunal that he had been unfairly dismissed. The tribunal held that the dismissal was unfair, both procedurally and substantively. The tribunal ordered that Mr Keable be reinstated.
The Council appealed to the EAT in relation to the unfair dismissal decision and the decision that Mr Keable should be reinstated. The EAT dismissed both grounds of appeal.
Key to the tribunal and EAT decisions that the dismissal was procedurally unfair were these facts:
- The specific reason for Mr Keable’s dismissal (that the average person would interpret his comment as suggesting collaboration with the Nazis) had not been put to Mr Keable during the investigatory and disciplinary process. He had not therefore been able to put his case forward in relation to this allegation.
- Mr Keable had not been asked whether he would repeat his comments or whether he would be prepared not to go on social media and not to discuss these matters further. The Council had assumed that Mr Keable believed he had an absolute “right to offend”. However, he had stated that he had a “qualified right to offend”. Given this admission, it was possible that a warning would have been sufficient to prevent recurrence of the misconduct. The Council should have discussed lesser sanctions with Mr Keable.
The tribunal also held (and the EAT agreed) that the dismissal did not meet the threshold for a conduct dismissal and was a harsh sanction outside the range of reasonable responses. Relevant to this were that the following facts did not show enough culpability:
- Mr Keable had attended the demonstration outside work hours, in his personal capacity and there was no discernible link to his employment at all.
- Mr Keable had not sought to publish his comments: they were published without his permission or knowledge, and he had no control over the social media coverage.
- Mr Keable’s comments had not been found to be discriminatory, racist, anti-Semitic, unlawful, criminal or libellous.
- There was reasonable academic argument that, interpreted correctly, his words were not anti-Semitic.
- The comments had not been expressed in an abusive, threatening, personally insulting or obscene manner.
- Mr Keable’s post was not politically restricted.
- Mr Keable had been employed for 17 years and had an unblemished record.
The EAT also held that the tribunal were right to order reinstatement. It was not the case that the Council’s belief in Mr Keable’s serious misconduct had destroyed trust and confidence in him. None of his colleagues had complained that they were not prepared to work with him and in fact some had given supportive evidence on his behalf.
What does this mean for employers?
Employers should be aware of two procedural points highlighted by this case. Firstly, it is an established principle of employment law that employers must tell employees during the disciplinary process the specific allegations against them. If they do not do so, the dismissal will usually be unfair. The employee must know the case against them so that they can respond to it.
The second procedural learning point, that employers should proactively consult with employees on potential disciplinary sanctions, does shift the dial slightly. While many employees might state that a lesser sanction would make a difference to their behaviour, in many cases, consulting with the employee about this will make no difference to the outcome, and a failure to do so will not mean that a dismissal is unfair. However, where disciplinary procedures are not contractually agreed, employers should consider building this into their disciplinary processes.
London Borough of Hammersmith and Fulham v Mr S E Keable
