Unfair Dismissals: the Employees right to be heard
In this article Ellie Forsyth looks at the case of London Borough of Hammersmith and Fulham v Keable.
If an employee is not given the opportunity to respond to any specific allegation relied upon in a disciplinary hearing, will the dismissal be deemed unfair? In short, yes, as clarified in a recent decision by the Employment Appeal Tribunal.
In the case of London Borough of Hammersmith and Fulham v Keable, the Claimant worked for the Council as a Public Protection and Safety Officer. Prior to the incident that is set out below, the Claimant was deemed to be ‘good at his job’ and had a clean disciplinary record.
The Claimant described himself as an ‘anti-Zionist’ and was very politically active. On 26th March 2018, the Claimant attended a rally organised by Jewish Voice for Labour. This was in his personal capacity and not as part of his role within the Council. During the rally, the Claimant had an exchange of words with a counter-demonstrator, part of which was filmed and it was subsequently circulated on social media without the Claimant’s knowledge or consent. He was identified as a Council employee and disciplinary proceedings ensued, the outcome of which was the Claimant’s dismissal.
All employees of the Council are expected to abide by its Code of Conduct. Relevant to this case is the provision relating to politically restricted posts. It states:
‘the effect of including a local authority employee on the list of politically restricted posts it to prevent that individual from having any active political role either in or outside the workplace.’
However, it was agreed by both parties that the Claimant was not in a politically restricted post, and therefore was able to be politically active with all that entailed.
When the case came before the Employment Tribunal, the decision ruled in the Claimant’s favour and it was held that the dismissal was unfair. This was on the basis that the Claimant had not been given the opportunity to comment on the allegations relied upon for the dismissal (namely what the average person would think of the remarks made by the Claimant). He had not been sent the disciplinary notes until the date of his hearing, he did not put the specific allegations of misconduct to the claimant (the offensive remarks) and the Claimant did not have the opportunity to point out that the individual and national newspapers had not considered those remarks to be offensive. Whilst it was for the employer to determine misconduct, the judge did not believe that it fell within the band of reasonable responses, noting that the ACAS Code of Conduct advises that normal sanction for a first offence is a warning. A reinstatement order was made.
This decision was upheld by the Employment Appeal Tribunal who found the Employment Tribunal was entitled to find that the dismissal fell outside the band of reasonable responses, particularly because there were relevant and significant errors in the procedure adopted by the Council. It was also held that even if a dismissing officer has a genuine belief that misconduct has occurred, re-instatement can still be ordered. In this instance, it was right for the Employment Tribunal to conclude that the Council had not lost trust and confidence in the Claimant.
What does this mean for you or your business and what should you be doing now?
It is of the upmost importance that any employee who is being disciplined is given the opportunity to respond to all the allegations against them. To not do so would risk any dismissal being deemed to be unfair, because of an unfair procedure. Employers should endeavour to provide all material before the disciplinary meeting that will be relied on to the employee to ensure that all aspects of the matter can be ‘flushed out’.
Equally, when considering sanctions, what is reasonable will depend on the circumstances and the facts of the case. The Claimant in this case had an unblemished record of 17 years, which should have been considered as a mitigating factor. Because of his long service, it was found that trust and confidence had not broken down, so the Employment Tribunal took the rarely used route of allowing reinstatement to his previous position, not something an employer is often keen to do following years of litigation.
The full judgment from the EAT can be read here.
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.