In London Borough of Hammersmith and Fulham v Keable (Unfair Dismissal)  UKEAT 2019-000733, Mr Keable worked for the Council as a Public Protection and Safety Officer in its Environmental Health Department. There was agreement that he was good at his job and that, before the matters leading up to his dismissal occurred, he had a clean disciplinary record . The Council’s Code of Conduct for its employees set out standards of behaviour expected from all of the Council’s employees. It included provisions regarding politically-restricted posts – but Mr Keable’s post was not politically restricted . Mr Keable was a member of the Labour Party, and it was agreed by both parties that he was free to be politically active, to attend political meetings and demonstrations, to discuss political views there and to state his opinions .
He attended a rally outside Parliament in March 2018 organised by “Jewish Voice for Labour” (a small pro-Corbyn, anti-Zionist grouping formed to act as a counter to the mainstream “Jewish Labour Movement”). He did so in his own time, in his personal capacity and wearing nothing to identify him as a Council employee . At the same time, another rally was taking place organised by the Jewish group “Enough is Enough” . During the “Jewish Voice for Labour” rally, he had an exchange with someone attending the “Enough is Enough” rally  which was filmed by a third party without his consent and subsequently put on social media by David Grossman, a BBC Newsnight journalist – where it went viral . Greg Hands MP then shared David Grossman’s Twitter post on his own Twitter feed and identified Mr Keable as an employee of Hammersmith and Fulham Council .
The Council held a disciplinary investigation to which Mr Keable’s ex-wife, who is Jewish, submitted a statement asserting that Mr Keable was not an anti-Semite and that, in her view, it was not anti-Semitic to be opposed to Zionism because many Jews were critical of the Government of Israel . Mr Keable was subsequently dismissed  and his appeal against his dismissal was unsuccessful .
An Employment Tribunal concluded that he had been unfairly dismissed. The investigation and disciplinary process had been unfair and outside the range of reasonable responses of a reasonable employer because the precise basis for the dismissal had been different from that which Mr Keable had been informed he would be required to meet during the investigatory and disciplinary process . Further, the dismissal had gone
“well beyond the range of reasonable responses of a reasonable employer in deciding to dismiss the Claimant in the following undisputed circumstances:
- That the Claimant made comments outside the workplace in his private capacity with no discernible link to his employment at all;
- The Claimant did not himself publish the comments;
- The comments were not found by the Respondent to be discriminatory, anti-Semitic, or racist;
- The comments were not alleged to be unlawful or criminal or libellous;
- The comments were not alleged to have been expressed in an abusive threatening, personally insulting, or obscene manner;
- The Claimant was acknowledged by [the Chair of the disciplinary hearing] to have a right to attend demonstrations in his own time and express his own opinions;
Even if the Respondent had found that those comments caused offence when they had been circulated and had brought the Council into disrepute” .
The EAT dismissed the appeal.
On Ground 1 – that Employment Judge Brown had substituted her own views for that of the employer – she had been entitled to conclude that the dismissal was unfair. She had concluded that there were relevant and significant errors in the procedure adopted by the Council, including the fact that Mr Keable had not been informed of the specific allegation which led to his dismissal and the fact that the possibility of a lesser sanction – a warning – had not been discussed with him:
“Reading the Reasons as a whole it is evident that the Judge concluded that the conduct dismissal was outside the band of reasonable responses in this particular case” .
In reaching her conclusions she had not substituted her own views for that of the employer:
“In our view, the Judge did no more than to apply, within the context of unfair dismissal, the well-established principle that an individual should know the case against them” .
As to Ground 2, that the ET had referred in the judgment to the decision in Smith v Trafford Housing Trust  IRLR 86 without first alerting the parties to that authority and inviting them to make submissions before concluding its decision , while Employment Judge Brown should have raised a relevant authority with the parties, on the facts of this case that did not vitiate the decision:
“Even if the EAT concluded that the Judge erred in this part of her findings there were numerous other reasons why the dismissal was found to be substantively unfair. In addition, the Judge expressly recorded that the decision in Smith only augmented or reinforced conclusions she had already reached” .
As to remedy, on the evidence before her she had been entitled to conclude that reinstatement was practicable and to make the order that she had done.