Where can precautions against COVID-19 constitute gross misconduct?
This case demonstrated how tribunals deal with claims of unfair dismissal where someone has been dismissed for attempting to prevent the spread of COVID-19.Read more
Mr Keable worked for London Borough of Hammersmith and Fulham Council (the Council) as a Public Protection and Safety Officer. He was employed by the Council from March 2001 until his dismissal for “serious misconduct” in May 2018.
In March 2018, Mr Keable, being politically active, took part in a rally outside parliament. The rally, organised by Jewish Voice for Labour, was a counterdemonstration against a Jewish community protest against antisemitism in the Labour Party. The rally took place during Mr Keable’s own time, and he did not attend in any official capacity nor was there anything to connect him to his employer.
During the rally, Mr Keable had a conversation with an individual attending a separate rally that was taking place on the same day. That conversation was filmed by a Newsnight journalist without Mr Keable’s knowledge or consent. The footage of this conversation was later uploaded to Twitter, which sparked a heated debate and eventually came to the attention of the MP for Hammersmith, Greg Hands. Mr Hands sent a tweet linking the video to Mr Keable and Mr Keable to the Council. This tweet then came to the attention of Councillor Steven Cowan, the Labour leader of the Council, who sent an email to senior Council officials stating that he felt Mr Keable’s actions had brought the Council into disrepute, and that he had committed gross misconduct. He asked for the matter to be looked at immediately.
Mr Keable was suspended, and a disciplinary investigation began. During the course of the investigation, Mr Keable asked to be told precisely which of the comments he had made were relevant to the specific allegations he was facing. The response from the Council’s investigating officer was that it was two comments which were likely to cause offence: “the Zionist movement collaborated with the Nazis” and “the Zionist movement accepted that Jews are not acceptable here”.
Mr Keable was subsequently dismissed for serious misconduct, and in particular, because the disciplinary officer felt that “the average person would interpret your comments as suggesting that Zionists collaborated with the Nazis in the Holocaust and is highly likely to cause offence”. A discussion about the average person’s interpretation had not been put to Mr Keable as part of the disciplinary process.
The tribunal found that the dismissal fell outside the range of reasonable responses of a reasonable employer because the basis for the dismissal was different to that which the claimant had been informed was the basis of the disciplinary investigation and hearing. Rather than being for the two comments referred to above (which did not mention the Holocaust), the tribunal found that Council had dismissed Mr Keable because they had concluded that “the average person would interpret Mr Keable’s comments as suggesting that Zionists collaborated with the Nazis in the Holocaust”. The tribunal found that as this had not been properly put to Mr Keable as part of the disciplinary process, he had not had the chance to challenge this, as was his right.
The tribunal also found the dismissal to be unfair because Mr Keable was not invited to comment on whether a lesser sanction, such as a warning, would have been appropriate. The disciplinary officer stated in evidence that he did not believe Mr Keable would heed a warning based on his insistence that he had a right to offend but, again, this was not put to Mr Keable for comment as part of the disciplinary process. The tribunal held that a fair procedure required such thinking to be put to Mr Keable so that he could engage and respond appropriately. This would then have allowed the Council to reflect upon and even challenge their own views on sanctions.
Having found the dismissal to be procedurally and substantively unfair, the tribunal made an order for reinstatement.
The Council appealed on the basis that the tribunal had substituted its own opinions when concluding that the dismissal fell outside of the band of reasonable responses. The Council also appealed the tribunal’s decision to make an order for reinstatement on the basis that the tribunal had erred in finding the Council had not lost trust and confidence in Mr Keable.
The EAT dismissed the appeal.
In respect of whether the dismissal fell within the range of reasonable responses, the EAT found that the tribunal’s conclusion (that there were relevant and significant errors in the procedure adopted by the Council) was sound on the evidence before it. The tribunal judge had not, therefore, substituted her own opinion over that of the employer decision maker. Rather, the judge had simply applied the “well-established principle that an individual should know the case against them”.
As to the order for reinstatement, the EAT found that the tribunal was entitled to reach the decision that it did. There was nothing to suggest that the Council had lost trust and confidence in Mr Keable as had been confirmed by their own witnesses. The tribunal also considered Mr Keable’s evidence on this point and in particular his view that whilst he felt the disciplinary charges were politically driven, he did not believe the Council was part of a conspiracy against him and that he had maintained good relations with work colleagues.
There are a number of learning points for employers to take away from this judgement.
Firstly, it is important that any allegations for misconduct are clearly communicated to all parties. Clear and precise drafting of allegations is likely to assist in this regard, and where the disciplining officer is minded to dismiss, they should ensure that the proper reason for dismissal has been sufficiently put to the employee before any action is taken.
Secondly, disciplinary officers should also invite employees facing dismissal to comment on whether a lesser sanction, such as a warning, might be appropriate. The employer can then use the employee’s views to form a decision themselves as to whether that is a reasonable response.
For assistance with preventing unfair dismissals or to enquire about representation with a case, please call us on 01332 226 155 or fill in the form below.
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