When considering an allegation of misconduct, case law states that employers must ensure that the employee is aware of the allegation/s against them. In London Borough of Hammersmith and Fulham v Keable, the Employment Appeal Tribunal (EAT) held that it was unfair to dismiss Mr Keable as the specific allegation relied on by the council for his dismissal had not been put to him.
Basic facts
Mr Keable, a council employee since 2001, worked in a non-politically restricted post within the Environmental Health Department, which meant he was allowed to be politically active. In March 2018, he attended a rally organised by a Jewish group in a personal capacity in his own time. He was not wearing any clothing that would have identified him as an employee of the council, nor did he say anything to link him to the council or to his employment.
During the rally, he became involved in a debate with someone attending an opposing demonstration organised by a different Jewish group. During this interaction, Mr Keable said that Zionists had collaborated with the Nazis. The exchange was filmed without his knowledge and posted on the Twitter account of David Grossman - a BBC Newsnight journalist, which was retweeted by Greg Hands - the MP for Hammersmith, who identified Mr Keable. This then came to the attention of the Labour leader of the council who demanded that the council take action against Mr Keable.
At the disciplinary hearing, the dismissing officer expressed his concern that the “average person” would interpret Mr Keable’s comments as meaning that Zionists had collaborated with the Nazis in the Holocaust and was therefore highly likely to cause offence. He was dismissed for serious misconduct arising from a breach of the council’s Code of Conduct for employees, and for bringing the council into disrepute.
Tribunal decision
The judge found that the dismissing officer did not have “reasonable evidence” on which to base his conclusion that the average person would interpret the comments in the way that he suggested.
In any event, she held that Mr Keable should have been given the chance to respond to the dismissing officer’s interpretation of the comments. However, this had not been flagged up to him either in the investigatory report or during the disciplinary hearing. Nor had he been asked if he would abide by a warning. Instead, the dismissing manager had just assumed that he would not, and that dismissal was the only option available.
As it was outside the range of reasonable investigations for Mr Keable not to know the nature of the misconduct alleged against him prior to being dismissed, and not to have been given the chance to comment on a warning, the dismissal was unfair.
The judge concluded that despite the concern about his conduct, the council had not lost trust and confidence in Mr Keable. Apart from anything else, he had apologised for what he had said and recognised that his words could cause offence. Therefore, she concluded that it was appropriate to make an order for reinstatement.
EAT decision
Dismissing the appeal, the EAT held that the tribunal judge was right to conclude that the dismissal was unfair on the basis that it was outside the band of reasonable responses.
There were significant errors in the procedure, including the fact that Mr Keable was not warned in advance that the dismissing officer had adopted a particular interpretation of his comments. In addition, the council had not considered the possibility of a lesser sanction in the form of a warning, nor had it discussed that possibility with him.
With regard to ordering Mr Keable’s reinstatement, the judge was entitled to conclude that this remedy was practicable in the circumstances, even though the dismissing officer genuinely believed that he was guilty of misconduct.
Comment
The finding that the employer should have proactively consulted with Mr Keable on an alternative to dismissal is useful for union representatives when supporting members in similar circumstances. It was also helpful for the tribunal to find that it does not automatically follow that reinstatement is impracticable when an employee has been unfairly dismissed for misconduct.