EAT hits employer with warning shot on disciplinary procedures (UK)David Whincupon November 11, 2021 at 4:35 pm Employment Law Worldview


London Borough of Hammersmith and Fulham – v – Keable is an EAT case with everything in it – Nazis, Holocaust deniers, Momentum activists and Members of Parliament, though not necessarily all at the same time.  Oddly, despite this outstandingly diverse cast, the most important part of the decision for employers is actually the EAT’s basis for upholding the decision that Keable was unfairly dismissed by LBHF and should be reinstated.  If it is right it represents a small but perceptible new procedural obligation on employers in disciplinary requirements.

Keable was dismissed for misconduct after exchanging words with another demonstrator at a clash of rallies outside the Houses of Parliament.  He had said nothing aggressive or deliberately offensive, but instead made what appeared to be a challenge to conventional wisdom around the role of Zionism in the Holocaust.  Without his knowledge or agreement, Keable’s words were filmed by a third party and put on social media. That generated a volume of reasonably histrionic commentary about the alleged significance of his words.

That led to Keable being identified as an employee of the Borough, and then to disciplinary proceedings.  He made a number of quite involved points concerning the relationship between Zionism and Judaism which he said showed that his words had not actually been anti-Semitic, regardless of how they could have been (and in fact were) perceived by the casual peruser of certain social media sources.  He said at the same time that while he regretted the upset caused, his rights to free speech included “the right to offend”.  His arguments in the disciplinary process were bolstered by what might loosely be described as written representations from his trade union representative in particularly shouty and aggressive terms (he described the Borough’s investigation report as “indigestible gobbledegook”, “pitiful verbiage” and “spurious nonsense”, none of which was frightfully well received by either the Borough or the ET), plus some rather more reasoned academic support for the objective basis of the remarks which he had made.

Ultimately Keable was dismissed.  Even though his was not of those Local Government roles expressly prohibiting the manifestation of political views and affiliations, he had not been rude or aggressive in this comments, he was not wearing anything linking him back to LBHF, the video had been posted without his knowledge or agreement, it had all been out of working hours and there was a decent argument that interpreted correctly his words had not been anti- Semitic, the Borough felt that he had put himself beyond the pale in attending the demo, there making comments likely to be perceived as unlawfully hostile on religious grounds and so bringing it into disrepute.

The ET and the EAT concluded that Keable’s dismissal was so harsh as to be outside the range of reasonable responses.  Given all those “even thoughs”, there was just not enough of a reason left to take him from a long and blameless past history with the Borough to dismissal in the 105 seconds of the video clip [N.B., the EAT’s reference to that short period is legally a red herring – somebody putting their mind to it at the average Parliament Square demonstration could easily do enough to warrant their dismissal within that time].

It was concluded that the Borough had let its fear of association with religious discrimination of any kind lead it to cut the key corner of what actually it was dismissing Keable for.  That was not what it thought about what he said, but what it feared that the general public might think.  Leaving aside the preliminary question of whether what the general public thinks about things it sees on social media is a good basis for anything anyway, the problem was that the Borough had not told Keable that that was its concern.  Accordingly he did not get the opportunity to comment on that point.  Having a right to be heard on a fundamental plank of the case for your dismissal is such a basic part of unfair dismissal process that the ET could reach no other decision that that the dismissal was unfair.

However, it did reach some other decisions too, in particular that LBHF should also have proactively consulted with Keable on whether a warning would have been enough to prevent a recurrence.  This seems to be one step further than usual practice requires – that is only to consider whether a warning would have been adequate deterrent, not to consult on the question with the employee.  Or more strictly, to do so proactively – of course the employer should consider any representations on intended sanction made by the employee, but the seeming obligation to put it expressly to him is new.  It is a little hard to think that this obligation of consultation can be right as a matter of principle – after all, only the most determined offender is going to agree that there is no point in issuing him with a warning instead of notice, so what difference could that consultation make?  There is nothing to that effect in the Acas Code of Practice. Here the Borough had concluded from Keable’s express reservation of the right to offend and the particularly immoderate terms of his union rep’s written submissions that he was likely to do it again, hence that a warning would be ineffective.  That seems a not unreasonable conclusion.  However, the ET and EAT thought that consulation on the point would have shown more clearly that Keable regretted the hoo-hah caused and did not claim that his right to offend was absolute.  Therefore while consulting with the employee about a warning might not make a difference in many cases, here it might have done so.

Additionally the EAT noted the contribution to the dismissal decision of the written representations from the union rep.  Even though they had not been prepared by Keable, he had submitted them as part of his arguments, and so was tainted by their tone to some extent (a 10% contribution, thought the ET). The ET found nothing in Keable’s attendance or conduct at the demo to be in anyway culpable.

Last, there was the question of reinstatement.  How could the ET award Keable his job back where he had been dismissed for misconduct in which the employer’s belief was genuine and he had been guilty of some level of contributory fault? The ET and EAT identified the key question around the practicability of reinstatement as whether there had been any breakdown in the relationship of trust and confidence between employer and employee. Often it is implicit that where the employee is dismissed on conduct grounds, that will be the case – after all, if trust and confidence remain, why dismiss in the first place? However, that is not to lay down a general rule that that there can’t ever be reinstatement after a conduct termination. Here the dismissing officer himself accepted that Keable had not fallen out with any of his colleagues and some had even been supportive of him. He had behaved professionally through the disciplinary process and resisted the temptation to allege it all to be a management plot against him. In addition, it could not be right that a genuine belief in the employee’s misconduct could block reinstatement even where, as here, that belief is found to be unreasonable.

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