When is it appropriate to dismiss and when should a warning be considered?

The Employment Appeal Tribunal (“EAT”) in the case of London Borough of Hammersmith and Fulham v Mr Stanley Edward Keable has considered whether it was unfair for the Respondent to dismiss the Claimant as opposed to considering a lesser sanction following his involvement in a political rally.

Background

The Claimant was a political activist employed by London Borough of Hammersmith and Fulham (“the Respondent”). The Claimant was employed by the Respondent for around 17 years with a good record before he was dismissed from his employment for serious misconduct following a political rally. The Claimant was found to have exchanged words with another individual at a political rally that occurred outside Parliament about anti-Zionism and anti-Semitism. The conversation was filmed without the Claimant’s knowledge or consent and posted on social media which led to the Claimant being identified as an employee of the Respondent. The Respondent decided to conduct disciplinary proceedings arriving at the decision to dismiss the Claimant on the basis that the comments made were inappropriate, likely to be considered offensive and likely to bring the Respondent into disrepute.

The Claimant unsuccessfully appealed the decision to dismiss and subsequently brought a claim of unfair dismissal to the Employment Tribunal (“ET”).

The Law

Section 94 of the Employment Rights Act 1996 (“ERA”) provides for the right for an employee not to be unfairly dismissed by their employer. An employer has to establish a potentially fair reason for dismissal under section 98(1) ERA and show that in all the circumstances (including the employer’s size and administrative resources), the employer acted reasonably in deciding to dismiss the employee for that reason (section 98(4) ERA).

In determining whether a dismissal is fair, the Employment Tribunal will consider procedural fairness and whether a fair procedure was followed (i.e. the ACAS Code of Practice) and whether the employer acted reasonably in treating the reason as a sufficient reason for dismissal, for example did the decision to dismiss fall within the range of reasonable responses.

Decision

The ET held that the Claimant’s dismissal was unfair both procedurally and substantively. The Employment Judge noted that there were significant failures in the Respondent’s procedure to dismiss the Claimant including failing to specify the allegation that led to his dismissal and failing to consider a lesser sanction. The Claimant, by not knowing the allegations against him, was unable to put his case forward and defend the allegations. The ET also highlighted that the decision to dismiss did not fall within the band of reasonable responses given that the Claimant had lawfully expressed his views outside of the workplace and with no discernible link to his employer and a warning and consultation with the employee about what sanction would apply would have been a more appropriate step to ensure the misconduct of the Claimant did not reoccur. The Claimant was subsequently reinstated in his role and the Respondent appealed.

The EAT in dismissing the appeal upheld the ET’s decision that the dismissal was unfair.

Comment

This case highlights the importance of following the appropriate procedure in conducting disciplinaries before arriving at the decision to dismiss an employee and the importance of an employee knowing the full details of the allegations against him/her so that they can fully respond to and answer to any allegations. In addition, this case reiterates that the decision to dismiss is a final, severe sanction that should usually only occur in cases of serious misconduct or where the employee has already received a number of warnings for misconduct. To ensure a dismissal is fair, the decision to dismiss must fall within the band of reasonable responses, if it does not, then a lesser sanction should be considered.

Case reference: London Borough of Hammersmith and Fulham v Mr Stanley Edward Keable EA-2019-000733-DA

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