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Legal Corner: Dismissal of Council employee for comments about Zionism was unfair

26th Nov 2021
Legal Corner: Dismissal of Council employee for comments about Zionism was unfair

There is often an interesting debate about the extent to which an employee’s views and actions expressed in a personal capacity, without reference to their employer, can impact their employment.

This issue was key in the recent decision of the Employment Appeal Tribunal in London Borough of Hammersmith and Fulham v Keable EA-2019-000733-DA.

Mr Keable was employed by the Council within its Environmental Health department. He had 17 years of service and was good at his job. His job was not categorised as ‘politically restricted’, which meant that he was free to be politically active; Mr Keable took part in campaigns for social justice, including supporting Palestinian rights.

In 2018, Mr Keable took part in a rally outside Parliament organised by Jewish Voice for Labour. He did so in his own time, and there was nothing which he said, did or wore that linked him to his employer.

During the rally, he had a conversation with someone, which was partly recorded, in which he made comments that suggested that although the Nazis were anti-Semitic, the Zionists had collaborated with the Nazis. The footage, which Mr Keable did not consent to be recorded or published, was widely shared on Twitter, including on the account of a BBC Newsnight presenter under the caption “Anti-Semitism Didn’t Cause the Holocaust and Zionists Collaborated with the Nazis.”

There was no reference to Mr Keable’s employer in the post, but it was then shared by the MP for Hammersmith who urged action, and then came to the attention of the Leader of the Council, who suggested that Mr Keable’s words amounted to gross misconduct, and urged for action to be taken.

Mr Keable was suspended the same day, and an investigation commenced. Mr Keable made clear that the clip showed an exchange of political opinions carried out in a private conversation between two willing participants, in which he had not had any intention to offend.

He also provided a supportive statement from his ex-wife (who was Jewish) that in her view, he was not anti-Semitic, and further that to be opposed to Zionism was not anti-Semitic. The investigation recommended disciplinary action; it noted that he had failed to avoid conduct outside of work that might discredit him or his employer.

Following a disciplinary hearing, Mr Keable was dismissed. The disciplinary manager concluded that whilst Mr Keable was having a private conversation, he was attending a public demonstration on a public street and was aware of the presence of cameras. He considered that ‘The average person would interpret your comments as suggesting that Zionists collaborated with the Nazis in the Holocaust and is highly likely to cause offence’.

He relied on the fact that the majority of comments on social media had interpreted Mr Keable’s comments negatively, and the Council had received a complaint from the local MP. It was his view that Mr Keable had brought his employer into disrepute.

Mr Keable brought a claim of unfair dismissal to the employment tribunal and was successful. The Council’s appeal to

the Employment Appeal Tribunal also failed. The key reasons for this were:

(a) the fact that the disciplinary manager had come to a conclusion on what ‘the average person’ would make of Mr Keable’s comments, but it had not been made clear to him that this was the concern, nor was he asked for his view on it. This meant that the basis of the disciplinary action was not shared with Mr Keable, and so he could not have had a proper opportunity to respond to the allegation:

(b) Mr Keable was not asked whether he would repeat the comments, or whether he would be prepared not to discuss such matters further. An assumption was made that he would not heed any warning given; and

(c) Mr Keable had not been the one to publish the footage, had not behaved in a threatening or obscene matter, and had not been found to be discriminatory, anti-Semitic, or racist.

This case shows the importance of ensuring that a proper process is conducted, regardless of assumptions that might be made about the conduct alleged. It also shows that even if an individual makes comments outside of work that his employer might not like or agree with, that does not mean that he can be dismissed. A careful assessment needs to be made to ascertain whether the conduct is so inappropriate that the line between an employee’s work life and their private life has been crossed.

Safia Tharoo
Barrister, 40 Bedford Row, London

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