Employment Appeal Tribunal upholds ruling that council employee was unfairly dismissed over comments made at rally, and should be reinstated

The Employment Appeal Tribunal has dismissed an appeal by a London borough against a Tribunal’s decision that an employee from its Environmental Health Department was unfairly dismissed over comments he made when he attended a rally outside Parliament.

The claimant in London Borough Of Hammersmith And Fulham v Keable (UNFAIR DISMISSAL) [2021] UKEAT 2019-000733 was dismissed for serious misconduct arising out of comments he made in a conversation with another individual when they each attended different rallies in March 2018.

The summary of the EAT ruling said: “During the disciplinary process within the London Borough of Hammersmith and Fulham it was accepted that the conversation was about events around the time of the Haavara Agreement of 1933 prior to WWII. The words spoken included reference to anti-Semitism, Nazis and the Holocaust.

“The conversation was filmed and then made public through the media and social media. Others posted and retweeted the video clip and expressed their own views about it. This took place without the Claimant’s knowledge or consent.”

The video clip of the conversation came to the attention of an MP who tweeted about the comments and identified the claimant as a member of the Labour Party and a Momentum organiser.

Through those tweets one of Hammersmith and Fulham’s councillors identified the claimant as a council employee and invited the London borough to take action. Following disciplinary proceedings, the claimant was dismissed.

The Judge hearing the claim determined that the dismissal was both procedurally and substantively unfair. She made an order for reinstatement.

The EAT judgment said: “The Judge was entitled to conclude that the dismissal was unfair. She concluded that there were relevant and significant errors in the procedure adopted by the Council employer, including the fact that the Claimant was not informed of the specific allegation which led to his dismissal and the fact that the possibility of a lesser sanction, a warning, was not discussed with him. In reaching her conclusions the Judge did not substitute her own views for that of the employer.

“Whilst the Judge should have raised a relevant authority with the parties, on the facts of this case, that did not vitiate the decision, Stanley Cole (Wainfleet) Ltd v. Sheridan applied. As to remedy, on the evidence before her, the Judge was entitled to conclude that reinstatement was practicable and to make the order she did.” 

Both appeals were dismissed.