UNFAIR DISMISSAL
Misconduct
Awareness of allegation
Case London Borough of Hammersmith v Keable (2021) Morning Star, December 14, EAT
Facts K, an employee of LBH, worked in a non-politically post which meant that he was allowed to be politically active. In March 2018 he attended a rally organised by a Jewish group. He did not wear anything which would have identified him as an employee of LBH. During the rally, K said that Zionists had collaborated with the Nazis. This was filmed, posted in Twitter and retweeted. K was disciplined by LBH. The dismissing officer stated that the average person would interpret K’s comments as meaning that Zionists had collaborated with Nazis in the holocaust and was therefore highly likely to cause offence. K was dismissed for serious misconduct arising from a breach of LBH’s code of conduct for employees and for bringing LBH into disrepute. K complained of unfair dismissal. The ET upheld the complaint. K had not been given the chance to respond to the interpretation of his comments. It was outside the range of reasonable investigations for K not to know the nature of the misconduct alleged against him. The interpretation of his comments had not been put to him either in the investigatory report nor during the disciplinary hearing. K had apologised for what he had said and recognised that his words would cause offence. The ET ordered reinstatement. LBH appealed to the EAT.
Decision 1. The appeal was dismissed.
2. The dismissal had been outside the range of reasonable responses.
3. There were significant errors in the procedure. K had not been warned in advance that the dismissing officer had interpreted his comments in a particular way.
4. LBH had not considered the possibility of a lesser sanction in the form of a warning.
5, Reinstatement had been a practicable remedy in the circumstances.