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Employment Appeals Tribunal dismisses Council’s appeal against employee who was unfairly dismissed over comments made at rally

Makbool Javaid, Partner - Simons Muirhead & Burton

In the case of London Borough Of Hammersmith And Fulham v Keable an employee from the council’s Environmental Health Department was unfairly dismissed for serious misconduct arising out of comments he made in a conversation with another individual when they each attended different rallies outside Parliament.

During the disciplinary process within the Council 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 Keable’s knowledge or consent.

The video clip of the conversation came to the attention of an MP who tweeted about the comments and identified Keable as a member of the Labour Party and a Momentum organiser. Through those tweets one of the Council’s Councillors identified Keable as a Council employee and invited the them to take action. Following disciplinary proceedings, Keable was dismissed.

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

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