Laura McKenna: Must employers consult with disciplined employee about appropriate sanction?
An EAT judgment suggests failure to consult may render dismissal unfair, writes Laura McKenna.
There are many things that employers should consult with their staff upon, but is the appropriate sanction in misconduct proceedings really one of them? The Employment Appeal Tribunal in London Borough of Hammersmith and Fulham v Keable have upheld the finding of an Employment Tribunal judge that there were “relevant and significant errors in procedure” when dismissing the claimant that included “the fact that the possibility of a lessor sanction, a warning, was not discussed with him”.
The claimant was filmed, without his knowledge or consent, making comments while at a rally outside Parliament. The words spoken included reference to anti-Semitism, the Nazis and the Holocaust. The film was then put on social media, again without the claimant’s knowledge or consent, and subsequently commented on by members of the public and re-tweeted. Many of those who viewed the film perceived the claimant’s comments as anti-Semitic.
This took place out of work hours; the claimant did not identify himself as an employee of the council nor did he say anything to link himself to his employer. However, he was subsequently identified as an employee of the council and disciplinary proceedings were initiated against him. The council had a code of conduct that covered working with integrity and working with the media.
The claimant included written representations by his union rep during the disciplinary process which were aggressive in their terms. He did not apologise for what he had said but provided an explanation as to why his comments were not anti-Semitic, and his defence included an email from his wife - who, along with their daughter, was Jewish.
The employer did not reach a conclusion that the comments that had been made were anti-Semitic. However, the claimant was dismissed for “serious” misconduct, his actions in attending the rally breaching the code of conduct and bringing the council and its reputation into disrepute, his comments having been viewed 79,000 times with the majority of comments interpreting what had been said negatively. His notice was paid to him in lieu of working it. In the internal appeal against his dismissal, the claimant argued that his employer had not considered (1) a lessor sanction such as a warning, (2) his length of service and (3) his unblemished record. His appeal was unsuccessful.
The Employment Tribunal judge found that the dismissal was substantively unfair because the precise basis for the dismissal was different to that which the claimant had been informed he would be required to meet during the disciplinary process. The judge also concluded that the decision to dismiss was outside the band of reasonable responses because the employer failed to give the claimant the opportunity to comment on whether a warning would be an appropriate outcome. It was assumed that the claimant would not heed a warning without that ever being put to him. The circumstances of the events (including the fact the comments were made outside of work and were not found by the employer to be anti-Semitic) also put the dismissal outside the range of reasonable responses.
It does seem that the employer did make “relevant and significant errors in procedure” about matters that could have influenced the outcome of the disciplinary process in this case, and that a discussion with the claimant about whether he would have heeded a warning might have changed the outcome.
However, that is not to say that this case sets a precedent requiring an employer to take proactive steps to consult with an employee on appropriate sanctions, rather than simply listening to representations that may be made as part of the employee’s case. In many cases, it can likely be safely concluded that if the employer did consult about sanctions then the employee would not agree that dismissal is appropriate, which begs the question as to whether taking such a step is worthwhile. The employee’s view could also only be one factor that the employer would need to consider when deciding upon the appropriate sanction, other factors including the seriousness of the offence, the employee’s length of service and previous record, and how similar offences have been dealt with in the past.
Laura McKenna is an associate at Morton Fraser