Employers may come under external pressure to take disciplinary action against an employee, but that is all the more reason to follow a scrupulously fair procedure. The point was made by the case of a council employee who became the focus of media attention after participating in a demonstration outside Parliament.
The man worked in the council’s environmental health department. His role was not considered politically sensitive and he was free to attend demonstrations and to state his political views and opinions. He described himself as an anti-Zionist, but was adamant that he did not hold anti-Semitic views and that it was legitimate to criticise the government of Israel.
An exchange between him and another demonstrator was filmed by a television crew without his knowledge or consent. Words spoken during the conversation included references to anti-Semitism, Nazis and the Holocaust. The footage circulated widely in the media and online and came to the attention of an MP. The man was identified as an employee of the council by one of its members, who invited the council to take action.
He was dismissed on grounds of serious misconduct following a disciplinary hearing. The decision-maker did not conclude that his misconduct was gross or that he had been guilty of discrimination or anti-Semitism because of his remarks. He accepted that the man was entitled to express his own views. He found, however, that the remarks were insensitive, that they had caused offence to some people and that the man had brought the council and its reputation into disrepute.
After he launched proceedings, an Employment Tribunal (ET) upheld his unfair dismissal complaint and directed the council to reinstate him. It found, amongst other things, that he had not been informed of the specific allegation that led to his dismissal. He had a clean disciplinary record after 17 years’ service with the council, yet the possibility of imposing a lesser sanction – a warning – was not discussed.
Dismissing the council’s challenge to that outcome, the Employment Appeal Tribunal (EAT) found that his dismissal fell outside the range of reasonable responses open to an employer. He had not been given a fair opportunity to respond to the decision-maker’s interpretation of his remarks, nor had it been clearly explained to him why they were said to have brought the council into disrepute. The possibility of a warning had not been mooted because of an assumption that it would not be heeded.
The ET had not fallen into the trap of substituting its own views for those of the council. It was entitled to conclude that the dismissal was both procedurally and substantively unfair and that, even had a fair procedure been adopted, a fair dismissal would not have been possible. There was no flaw in the ET’s conclusion that the council had not lost trust and confidence in the man and that his reinstatement was therefore practicable.