A recent case in the London Central Employment Tribunals has touched on some very topical issues concerning the Labour Party, as well as considering whether activities undertaken by an employee outside the workplace can impact negatively on the employment relationship.
In Mr S E Keable v London Borough of Hammersmith and Fulham, Mr Stan Keable brought a claim of unfair dismissal against Hammersmith and Fulham Council (HFC) when he was dismissed after a video showing him arguing that the Zionist movement collaborated with the Nazis went viral on Twitter and was picked up by a Newsnight journalist, David Grossman.
Mr Keable worked for HFC from 2001 until his dismissal on 30 May 2018 and his employment record was blemish free. He was a political activist and was a member of the Labour Party until he was expelled as a result of his membership of Labour Party Marxists, a non-affiliated organisation.
The employer’s terms and conditions included a requirement to “avoid any conduct inside or outside of work which may discredit you and/or the Council”.
On 26 March 2018 there was a rally outside Parliament concerning anti-semitism in the Labour Party, which was organised by a group called “Enough Is Enough”. Attendees included representatives from the Board of Deputies of British Jews and the Jewish Leadership Council. There was also a counter-demonstration organised by Jewish Voice for Labour, a Corbyn supporting group which described itself as a socialist, anti-racist, anti-Zionist organisation of Jewish members of the Labour Party. Mr Keable attended the counter demonstration.
While there, he was filmed (apparently by a member of the public on a mobile phone) speaking with a member of the Enough Is Enough rally. The video found its way to the Twitter account of BBC Newsnight journalist David Grossman, who posted it with the caption “Anti-Semitism Didn’t Cause The Holocaust and Zionists Collaborated with the Nazis”.
Subsequently, Greg Hands, Conservative MP for Chelsea and Fulham reteweeted the post, adding “Many reports that this is Sam Keable, the local Momentum organiser in Hammersmith and Fulham. If so, will [relevant Labour leaders in the area] investigate and urge action?”
Subsequently, the Labour leader of the Council sent an email to senior Council officers entitled “LBFH employee Stan Keeble making antisemitic comments”. In the email he said:
“I’ll let Mr Keeble’s words speak for themselves. I believe he has brought the good name of LBFH into disrepute and committed gross misconduct. Please have this looked at immediately and act accordingly and with expediency … Please advise me at your earliest opportunity what action you have taken”.Paragraph 35, employment tribunal judgment
Mr Keable was suspended and an investigation was carried out, including an investigatory meeting with Mr Keable. He maintained that nothing he had said in the conversation had been intended to offend and that it was simply an exchange of political opinions carried on willingly between two people.
At the investigatory meeting it was incorrectly assumed that Mr Keable had met with Mr Grossman. In his supporting evidence it was contended on Mr Keable’s behalf (by his ex-wife) that he was no anti-semite and that it was not antisemitic “to be opposed to Zionism, as many Jews are, or to criticise the government of Israel”. He confirmed that he was anti-Zionist and that was a political position.
A disciplinary hearing took place on 10 May and on 21 May Mr Keable was sent written notice of his dismissal, not as a result of gross misconduct but serious misconduct, with the decision to dismiss being made because it was not thought that Mr Keable would heed a warning (although that was not put to Mr Keable in the course of the disciplinary proceedings). The person who made the decision to dismiss denied that he had been placed under political pressure to do so.
Mr Keable appealed against his dismissal on 30 May, contending that, at least, the employer should have implemented action short of dismissal. The appeal was dismissed on 10 July, on the basis that dismissal was a reasonable sanction.
In his judgment, Employment Judge Brown noted that the allegedly offensive and inappropriate comments were made outside work and with no relationship to Mr Keable’s work. There was no suggestion that he was speaking on behalf of his employer. However, his actions were publicised and found to be offensive by a number of people. They came to be linked with his workplace (as a result of him being identified as an employee of the Council). As a result “they did reflect in some way in the employer-employee relationship. They fell within the definition of conduct”. Procedurally, the evidence relied on, the investigator’s findings and the suspension were all satisfactory. However, Mr Keable was not afforded a proper opportunity to put his case, in particular where a finding was made against him on having caused offence, although it had not been specifically put to him that he had said that the Zionists colluded in the Holocaust. “It was outside the range of reasonable responses for an employee not to know, before they are dismissed, the nature of the misconduct alleged against them”.
In any event, dismissal was an inappropriate sanction when:
- the comments were made outside the workplace in a private capacity with no discernable link to the employment;
- they were not published by Mr Keable;
- they were not (expressly) found by the employer to be discriminatory, anti-semitic, or racist;
- they were not alleged to be unlawful, criminal or libellous;
- they were not alleged to have been expressed in an abusive, threatening, personally insulting or obscene manner; and
- it was acknowledged that Mr Keable had the right to attend political demonstrations in his own time.
There was a finding of minor contributory fault (10%) but that was as a result of a “rude, derogatory and personally insulting” submission to the disciplinary hearing drafted on behalf of Mr Keable by a Mr Greenstein.
Although the facts and background to this case are politically loaded, the rationale adopted by the employment judge is commendably straightforward and could be applied in many similar cases, with or without the political nuance. Sometimes, politically contentious statements can lead people to jump to conclusions and it is easy to understand how that might have happened in this case. However, that does not alter the need to apply relevant procedures as objectively and fairly as possible. In this case, two basic errors were made. Mr Keable was judged in respect of an allegation that had not been directly put to him at the disciplinary hearing and the usual approach to determining what is an appropriate sanction was clearly overlooked.