This was the question that the Employment Appeal Tribunal considered in the case of London Borough of Hammersmith and Fulham v Keable where the employer appealed against a Tribunal’s decision that it had unfairly dismissed an employee for making controversial remarks that were published on social media.
In order for a dismissal to be fair, an employer must be able to show:
- That the reason for dismissal falls within one of the five potentially fair reasons for dismissal. These are conduct, capability (which can include poor performance and ill health), redundancy, breach of a statutory requirement and “some other substantial reason”.
- That it acted reasonably in all the circumstances. Here, the tribunal will consider whether the employer followed a fair procedure and whether it was reasonable for the employer to dismiss for that reason, considering all the circumstances including the size and administrative resources of the business.
Where misconduct is the reason for dismissal, the tribunal will judge whether the employer has satisfied the “Burchell” test (British Home Store Limited v Burchell  ICR 303n). This involves assessing whether, at the time of dismissal:
- The employer had a genuine belief in the employee’s guilt;
- It had reasonable grounds for that belief; and
- At the time it held that belief, the employer had carried out as much investigation as was reasonable in the circumstances.
Having done so, the next question will be whether the dismissal fell within the “band of reasonable responses” – which means the tribunal must decide whether the employer’s decision to dismiss the employee fell within the range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted. The range of reasonable responses test applies both to the decision to dismiss and to the investigation. If the actions of the employer fall within this “band” then the dismissal will be fair. An important point about this test, however, is that the tribunal is not allowed to substitute its view for that of the employer – in other words, the tribunal is not permitted to decide the fairness of the dismissal based on what it would have done if it had been in the employer’s shoes.
Mr Keable was employed by the London Borough of Hammersmith and Fulham Council (the ‘Council’) as a Public Protection and Safety Officer and had worked for the Council for 17 years. Mr Keable was politically active and participated in campaigns for social justice. His job at the Council was not a “politically restricted” one, which meant that he was free to pursue his political activities outside of work. He was, however, required to abide by the Council’s Code of Conduct, which included a requirement to not do anything that may bring the Council into disrepute.
On 26 March 2018, Mr Keable attended a political rally outside Parliament. During this rally, unbeknown to him, he was filmed having a conversation with a demonstrator in which he made controversial remarks about anti-Semitism, Nazis, and the Holocaust. The film was shared widely on social media and came to the attention of an MP who tweeted about it. The MP mentioned Mr Keable by name in his tweets and asked whether the Council was going to investigate. Although the MP’s tweets did not say that Mr Keable was employed by the Council, they came to the attention of the Labour leader of the Council who wrote to senior council officials and asked them to take immediate action, saying he believed Mr Keable had brought the Council into disrepute and had committed gross misconduct.
Mr Keable was subsequently suspended from duties pending an investigation into allegations that he had made remarks that could be considered offensive and could bring the Council into disrepute. An investigation ensued and it was concluded that the matter should proceed to a disciplinary hearing.
A disciplinary hearing took place, following which Mr Keable was dismissed for serious misconduct on the grounds that he had made statements that were considered offensive and which the Council considered could bring it into disrepute. In particular, the Council stated in its dismissal letter that it believed “the average person would interpret your comments as suggesting that Zionists collaborated with the Nazis in the Holocaust and is highly likely to cause offence”.
Mr Keable subsequently brought a claim for unfair dismissal in the Employment Tribunal, claiming among other grounds, that the specific allegation that led to him being dismissed (that the average person would find his comments offensive) had not been put to him during the investigation or the disciplinary hearing and so he was not given the chance to challenge it.
The Tribunal heard the case and concluded that Mr Keable’s dismissal was unfair on the basis that the decision to dismiss him did not fall within the band of reasonable responses.
The Tribunal held that the Council had failed to put to Mr Keable the specific allegation that led to him being found guilty of misconduct and in doing so, deprived Mr Keable of the opportunity to dispute it. As such, the Tribunal held that the decision to dismiss fell outside the range of reasonable responses because an employee is entitled to know, before they are dismissed, the nature of the misconduct alleged against them. The Tribunal also held that the Council’s failure to give Mr Keable the opportunity to comment on whether a warning would be an appropriate sanction also fell outside the band of reasonable responses.
The Council appealed and one of its main grounds of appeal was that the Tribunal had substituted its own views for that of the Council in concluding that Mr Keable’s dismissal fell outside the range of reasonable responses.
The Employment Appeal Tribunal did not agree and upheld the finding of unfair dismissal. The Employment Appeal Tribunal said that the Tribunal was entitled to find that the Council’s failure to give Mr Keable the opportunity to comment on the actual basis that was relied upon by them for his dismissal (what the average person would think of his controversial remarks) along with the failure to give him an opportunity to comment on a warning as an alternative to dismissal, fell outside the band of reasonable responses.
Points to note
- For the purposes of this article, the main point of focus is the important procedural aspect that this case highlights. One of the main reasons the Council lost the case is because it failed to put to the employee the specific allegation that resulted in his dismissal. In doing so, it undermined one of the fundamental legal principles relevant to a misconduct dismissal which is that an employee is entitled to know the nature of the misconduct alleged against them.
- The case also, in an indirect way, serves as a useful reminder that where an employer seeks to rely on the risk of damage to reputation as the reason to dismiss, it is always advisable (unless the risk of harm to reputation is obvious) to attempt to assess the risk of harm.
Action to Take
- It is important to frame the allegations against an employee accurately at the start of any process. The reasons for this are two-fold. First, the content of the allegations will provide a framework for the investigation. Secondly, it is a fundamental principle of fairness that the employee knows the case against them. This principle is relevant (as this case demonstrates) throughout the investigation process and any subsequent disciplinary process.
- Care should be taken not to define the allegations too precisely or narrowly during the investigation stage as this could limit the scope of your investigation and/or lead to accusations of unfairness if the allegations are changed or added to following the investigation.
- Ensure that any letter inviting the employee to a disciplinary hearing sets out the allegations clearly and precisely.
- Make sure that you give the employee an opportunity to respond to the allegations and present their case before making any decision to dismiss.
- Follow the Acas Code of Practice on Dismissal and Grievance Procedures. Employment tribunals take this Code into account when considering whether an employer has acted reasonably or not in dismissing an employee.
Case: London Borough of Hammersmith and Fulham v Keable UKEAT 2019-000733 You can read the full judgement HERE: