For a dismissal to be fair, the reason (or main reason) for the dismissal must be one of the potentially fair reasons under section 98 of the Employment Rights Act 1996. These are capability, conduct, redundancy, statutory illegality, or some other substantial reason (SOSR). The employer must also show that it acted reasonably in all the circumstances, bearing in mind its size and resources, including following a fair procedure. The employment tribunal will decide whether, on the particular facts of the case, the dismissal fell within the band of reasonable responses open to the employer in the circumstances.
In London Borough of Hammersmith and Fulham v Keable, the employee was a public protection and safety officer. His job was not a politically restricted post. The Council had a code of conduct which set out the standards of behaviour expected from employees, including those relating to integrity and working with the media. The Code said employees should ‘avoid any conduct or associations inside or outside of work which may discredit you or the Council’ and ‘do nothing away from work which might damage public confidence in the Council or make you unsuitable for the work you do’. It also included a requirement not to bring the Council’s name into disrepute through the press or media. In March 2018, the employee attended a political rally in his own time wearing nothing which would identify him as a Council employee. He had a discussion with an opposition demonstrator and said that the Zionist movement had collaborated with the Nazis during the holocaust. It was filmed without his consent and put on social media without his knowledge. His employer was alerted, and he was subject to disciplinary proceedings for bringing the council into disrepute. During the disciplinary process, the employee said he had not been anti-Semitic, but had been having a private exchange of political views. He was dismissed for bringing the Council into disrepute because his comments were likely to cause offence. He brought an unfair dismissal claim.
The tribunal said the decision to dismiss was outside the band of reasonable responses. Although the dismissing officer may have had a genuine belief in the employee’s misconduct, he did not have reasonable grounds for that belief. In particular, at no point was the employee given the opportunity to comment on what he thought the average person would think his statements meant. The Council did not have reasonable evidence of what the average person would have thought about his comments. The employee had only been told that his statement that ‘the Zionists collaborated with the Nazis’ was likely to cause offence. Even if a fair procedure had been followed, it was outside the band of reasonable responses for the employer to conclude he should be dismissed for bringing the council into disrepute, even if his statements had caused offence. He had expressed his political views lawfully, in a non-abusive way, away from work, outside work time and had not been involved in publishing the comments. The EAT agreed. The dismissal process had contained significant errors. An employee should always know the full nature of the allegations made against them. The employee here should have been given an opportunity to comment on what he thought the average person would think his statements meant.
Employers must ensure that disciplinary allegations against an employee are both clear and complete. An employee must have the opportunity to properly understand the case they have to meet and to respond to it. This is not only good for the employee, who knows the test they have to meet. It is also vital for an employer to understand exactly what allegations they are pursuing. In this case, the employer’s dismissing officer created his own allegation and researched it after the hearing was over – that denied the employee the opportunity to answer that allegation properly or at all. This case also shows that employers must be cautious about disciplining employees for behaviour outside the workplace, especially when there is no link between the employee’s conduct and their work.
Adrian Fryer, Partner & Head of Employment
t: 0151 224 0539