Comments, offensive to some, made by a council employee outside of work could not justify dismissal.

Hammersmith and Fulham council had appealed to the Employment Appeal Tribunal ("EAT") following a ruling that it had unfairly dismissed Mr Keable following comments he made at a rally but the EAT have upheld the Tribunal's decision. 

Mr Keable's comment (“the Zionist movement collaborated with the Nazis”) was filmed and widely shared and he was identified as a Council employee. Nevertheless, the Tribunal judge found the dismissal to be both substantively and procedurally unfair. In her judgement she referred to Mr Keable having lawfully exercised his rights to freedom of expression and freedom of assembly, unconnected in any way with his workplace. His role at the council was not a political one. 

There were some significant procedural failings in the disciplinary process undertaken by the council including not informing Mr Keable of the specific allegation which led to his dismissal.

While this decision is very much fact specific, it does highlight (1) the importance of following a fair disciplinary process which complies with the ACAS Code of Practice on Disciplinary and Grievance Procedures before reaching a decision to dismiss, and (2) the particular difficulties that can arise in justifying a decision to dismiss where the alleged misconduct was committed outside the workplace. 

Deciding how to deal with alleged misconduct which took place outside the workplace is often tricky which is why taking legal advice at an early stage is recommended.