In some cases it may be prudent for an employer contemplating dismissal to discuss with the employee whether they would abide by a final warning. This will of course depend on the nature and seriousness of the original misconduct and the surrounding circumstances, but it is worth building a check into the disciplinary process at least to consider whether this might be appropriate. If a final warning might be sufficient, then the employee’s views about this should be sought and factored into the decision, rather than relying on assumptions about whether they would heed a warning.
In London Borough of Hammersmith and Fulham v Keable, a long-serving employee was dismissed following his expression of personal, anti-Zionist views at a political rally outside of working hours, video footage of which was uploaded onto social media by a third party without his consent with comments identifying him as a council employee. The council dismissed him on the basis that his comments were inappropriate, likely to be considered offensive, and likely to bring the employer into disrepute.
The Employment Appeal Tribunal upheld the tribunal’s finding that dismissal was outside the band of reasonable responses, given that the employee had expressed his political views in a lawful way, outside the workplace, with no discernible link to his employer, and that he was not responsible for the social media content.
The EAT also agreed with the tribunal’s view that there had been significant procedural unfairness. As the employee was dismissed based on the decision-maker’s conclusion as to how his comments would be interpreted by the average person, he should have been given an opportunity to respond to this. He should also have been given an opportunity to comment on whether a warning would have been appropriate and heeded by him; his response should then have been taken into account in determining whether to impose a lesser sanction. It was unfair for the decision-maker simply to assume that the employee would repeat his comments based on his insistence that he had a (qualified) right to offend.
The tribunal’s reinstatement order was upheld as there was clear evidence that the council had not lost trust and confidence in the claimant.