Did an employer act unfairly in failing to give an employee the chance to respond to the specific allegation relied on in a disciplinary investigation and outcome?

Yes, held the EAT in the recent case of London Borough of Hammersmith and Fulham v Keable.

The Claimant worked as a Public Protection and Safety Officer for the council and, at the point of dismissal, had worked for the council for 17 years.

In March 2018 he attended a rally, in his own time and wearing no paraphernalia to indicate he was a council worker, which was organized to oppose the alleged anti-Semitism within the Labour party. During the rally, he got into a discussion with one of the protesters, which was filmed, unbeknown to the Claimant, by a third party. The footage was then posted on Twitter by a journalist and discovered by the leader of the Council.

The Claimant was subsequently suspended, pending an investigation, on the grounds that he made ‘inappropriate and offensive comments… with the potential to bring the council into disrepute.’ When the Claimant asked the investigating officer (IO) which of his comments in the footage were felt to be offensive, he was told it was the remark that ‘the Zionist movement collaborated with the Nazis’.

During the investigation process, the Claimant submitted a report from an Emeritus Professor which stated that the Zionist/Nazi collaboration was a known fact as evidenced by the Haavara Agreement of 1933. The claimant said it was this agreement that he was referring to in the footage.

Following the investigation, the Claimant was dismissed for serious misconduct. In the dismissal letter, the IO said he accepted the Claimant’s assertion that he was referencing the Haavara agreement in the footage but that ‘a reasonable person’ watching it ‘would conclude that he had said that Zionists had colluded with the Holocaust.’

The original Tribunal found that the disciplinary process was unfair because the grounds for dismissal were different to that which the Claimant had been informed of during the disciplinary process. The Judge pointed out that when Claimant asked the IO which of his comments were felt to be offensive, the IO did not refer to the Claimant having said that Zionists collaborated in the Holocaust. It was outside the range of reasonable investigations for an employee not to know the grounds for dismissal, before they are dismissed, the nature of the misconduct alleged against them, said the Tribunal. The Tribunal made an order to re-instate the Claimant.

The Respondent appealed the decision of unfair grounds for dismissal on the basis that it was open to the IO to decide what was likely to cause offence to the average person, provided his conclusion was not irrational and consequently the Tribunal erred in concluding this needed to be ‘put’ to the Claimant.

The EAT dismissed the appeal, stating in their judgment of 26 October 2021 that the original Tribunal was entitled to find the Respondent’s actions fell outside the band of reasonable responses, and that the Judge was entitled to conclude that reinstatement was practical and to make the order she did.

This post was written by Jack Dooley, Paralegal at didlaw.