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In the recent case of London Borough of Hammersmith and Fulham v Keable the Employment Appeal Tribunal has upheld a decision that an employee was unfairly dismissed after a video of him expressing controversial views on Zionism went viral on social media.

What happened in this case?

Mr Keable was employed by the London Borough of Hammersmith and Fulham Council (the Council) from 19 March 2001 until his dismissal for serious misconduct on 21 May 2018.  He was good at his job and had a clean disciplinary record before the matters that led to his dismissal.

The Council had a Code of Conduct which set out the standards of behaviour expected from employees, including provisions regarding politically restricted posts.  However, Mr Keable’s role was not one of them, meaning that he was free to be politically active and do things such as attending political demonstrations and voicing his political views.

Mr Keable is a member of the Labour Party and a “Momentum” activist. On 26 March 2018 he attended a rally outside Parliament organised by “Jewish Voice for Labour” (a small pro-Corbyn, anti-Zionist grouping within the Labour Party formed to act as a counter to the mainstream Jewish Labour Movement).  Mr Keable attended this rally in his own time, in his personal capacity and wore nothing identifying 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, Mr Keable found himself speaking to an individual attending the Enough is Enough rally.  This exchange was filmed without Mr Keable’s consent by a third party and was subsequently put on social media.

In the following hours and days, the video of Mr Keable went viral and he was identified as an employee of the Council.  Many of the comments on social media were shared by MPs and Councillors who accused Mr Keable of bringing the Council into disrepute and called upon the Council to look into the incident. The Council ended up suspending Mr Keable while an investigation took place.  The suspension letter to Mr Keable set out that he had made inappropriate comments which were insensitive, offensive and had the potential to bring the Council into disrepute.

During the course of the investigation Mr Keable asked to be told precisely which comments were relevant to the allegations against him so that he could prepare for any resulting disciplinary. The investigating officer confirmed that two comments that were likely to cause offence were: “the Zionist movement collaborated with the Nazis” and “the Zionist movement accepted that Jews are not acceptable here”.

In the following disciplinary, Mr Keable made representations that he was not anti-Semitic, noting that he was previously married to a Jewish woman and that his daughter was Jewish. He also argued that while his comments could be perceived as being offensive, he had the right of free speech and the right to offend. His representations at the disciplinary were backed up by a statement that he had signed off on from his trade union representative which suggested that the investigations had been “indigestible gobbledegook”, “pitiful verbiage” and “spurious nonsense”.

The Council dismissed Mr Keable for serious misconduct on the grounds that he had brought the Council into disrepute.  The video had been viewed over 79,000 times at the time of checking and most of the comments on it had interpreted Mr Keable’s words negatively.  In addition, the Council had received a written complaint from a local MP and Mr Keable’s words had been linked in the media to his employment. Specifically, the Council concluded that the average person would interpret his comments as suggesting that Zionists had collaborated with the Nazis in the Holocaust.

Mr Keable appealed against his dismissal but was unsuccessful.  He then made a complaint of unfair dismissal to the Employment Tribunal.

What was decided?

The Tribunal’s decision – liability

The Tribunal found that Mr Keable’s dismissal was unfair on both substantive and procedural grounds.

In particular, it decided that the culpability of Mr Keable had been limited and that it was not within the range of reasonable responses to dismiss him for exercising his right to freedom of expression and freedom of assembly when he was acting in his personal capacity and not connected to the workplace.

Additionally, the reason given for the dismissal was different to the charges raised in the investigation and disciplinary process. It had never been put to him that the average person would interpret his comments as suggesting that Zionists had collaborated with the Nazis in the Holocaust and that this, in turn, would bring the Council into disrepute. As this allegation had not been put to him, he had not been given an opportunity to respond.

It was also found that the Council had not actually proactively consulted with Mr Keable on whether a warning would have been enough to prevent a recurrence, and this also led to his dismissal being unfair.  

The Tribunal’s decision – remedy

Mr Keable claimed reinstatement and was granted it.  Unusually in this case, the Council did not plead that there had been a breakdown in trust and confidence and the disciplining manager admitted that Mr Keable had not fallen out with any of his colleagues and, indeed, some had been actively supportive of him. He had also conducted himself in a respectable manner throughout the process.

It was, however, found that the union representative’s written statement had contributed to the disciplining manager’s decision to dismiss and, therefore, compensation was cut by 10%.

The appeal

The Council appealed against the Tribunal’s decision on both liability and remedy.

The EAT upheld the Tribunal’s decision confirming that Mr Keable had been unfairly dismissed as the full allegations against him had not been put to him and the Council had failed to give him an opportunity to comment on whether a warning would have been an appropriate sanction.  

The EAT said that a fair procedure required the Council to have put to Mr Keable what he would do if a warning was imposed and whether he would heed it.  It went on to say that a fair procedure is not a tick box exercise; it should seek to give the individual the opportunity to convey relevant information to the decision- maker and, in this case, this would have been relevant.

The EAT upheld the decision to reinstate Mr Keable confirming that the Council had not lost trust and confidence in him.

What does this mean for employers?

Employers should take care when communicating to employees the charges being put to them that may lead to their dismissal. In particular, they should explain as much as possible of their rationale for a decision to dismiss or give a warning so that an employee has as much detail as possible.

Employers should be careful when adopting a ‘one size fits all’ approach for a disciplinary procedure. While employers are encouraged to have written procedures, these are generally set out as the key steps in the procedure and the potential warnings that could be imposed. Every case is different, on the facts, and every investigation/disciplinary should be carried out with this in mind. 

A third take away for employers from this case is that reinstatement is possible, even when, on the face of it, the dismissal concerns an individual voicing their potentially offensive opinion in a public space.

If you would like to discuss any issues arising out of this decision please contact, Hannah Lynn (hannahlynn@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

London Borough of Hammersmith and Fulham v Keable

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A major new study commissioned by Standard Chartered Bank and the Financial Services Skills Commission examines the impact of the menopause on workers in the financial services sector, how it affects the leadership pipeline and how employers can better support staff.  Although the study focuses on the financial services sector, many of the findings are relevant to employers operating in other areas of the economy.

Why the menopause matters to the financial services sector

Around nine percent of the sector’s workforce is made up of women aged between 45 and 55, being the age bracket within which women are most likely to experience the menopause.  Earlier research has shown that a majority of women are negatively affected by the menopause at work, with the result that many choose not to progress in their careers or even leave the workplace altogether.

Given that the financial services sector is facing a skills gap and competition for talent, the report identifies that offering support to menopausal workers is one way to address this issue. 

Experiences of the menopause

The study shows that menopausal workers in the sector experienced a variety of physical and non-physical symptoms which negatively affect them at work.  The most commonly reported physical symptom was tiredness, followed by night sweats, muscle and joint pain, hot flushes, bloating, headaches, period changes, urinary problems, palpitations and dizziness.  The most commonly reported non-physical symptom was insomnia, followed by anxiety, memory problems, difficulty concentrating, mood swings, irritability, loss of confidence and depression.

The key message for employers is to understand and speak openly about these symptoms in order to ensure that appropriate support is made available.

Wellbeing and relationships in the workplace

The research revealed a “culture of silence” around the issue, which had a negative impact on workplace relationships.  Around half of menopausal workers said the menopause was not something that they felt could be discussed at work. 

Only around 20% of affected staff disclosed their status with a view to accessing support – interestingly, this figure was much lower for those in senior leadership roles (at around eight percent).  The primary reason holding workers back from disclosing their status was the belief that they would be perceived negatively, followed closely by a fear that their abilities would be questioned.  The report also revealed that women working in male-dominated and/or younger workplaces were particularly worried that managers and colleagues would not react well.   

In addition to this culture of silence, menopausal workers reported feeling less heard when they offered an idea or opinion.  Only 66% of menopausal women felt heard compared to 85% of younger men.  In focus groups and interviews, menopausal women also spoke of their inability to enjoy work in the way that they used to.  This was mainly driven by the worry that they would make a mistake, which led to a loss of confidence and a tendency to become withdrawn.

Retention of talent and the pipeline to senior roles

The study showed that workers experiencing difficult menopause symptoms at work are making the conscious choice not to progress into senior roles and, in some cases, are taking a step down in seniority or leaving the workplace altogether.

Around half of menopausal workers said they were less likely to apply for a promotion and a similar proportion said they were unwilling to take on extra responsibilities in their current role.  In focus groups, some reported not applying for a promotion (or rejecting an offer of a promotion) because they were worried that they would not be able to perform adequately in a more demanding role due to their symptoms.  More starkly, around a quarter of menopausal workers reported that the menopause made them more likely to leave employment altogether before retirement.

A common theme among those who did not apply for promotion, or who left the workforce, was that they did not know at the time that they were suffering from the menopause.  These workers reported that if they had better knowledge then they may have made a different decision.  This represents an opportunity for action by employers.

What can employers do to support menopausal workers?

The study concludes that employers should take action to support menopausal workers in three key areas.

Firstly, in relation to culture, training and awareness, the message is that menopause as a workplace issue is where mental health was ten years ago.  Just as with mental health, employers need to break the stigma surrounding the menopause.  It is recommended that employers:

• provide information and advice about the menopause and coping at work;
• train managers and HR on the menopause;
• publish a menopause policy or guidance document;
• facilitate support systems and networks;
• demonstrate senior leadership support; and
• cover the menopause in private health insurance and employee assistance programmes.

Secondly, the study recommends that employers communicate to staff that menopause is a good reason to wish to work flexibly and offer a range of flexible working options such as:

• working from home;
• staggered hours;
• flexibility to take short breaks;
• building in breaks between meetings; and
• allowing part-time working and job sharing.

Thirdly, the report highlights that simple changes to the working environment will help menopausal workers manage their symptoms.  Changes that would help to make the workplace more menopause-friendly include:

• providing a quiet room to relax (this is said to be especially helpful for those in client-facing roles);
• providing desk fans as a matter of course;
• giving workers a fixed desk;
• providing a good range of sanitary products in the toilets; and
• providing loose fitting / layered uniforms where relevant.

Employers operating both in and out of the financial services sector should take note of these findings and recommendations and consider what can be done to support and retain this overlooked part of the workforce. 

If you would like to discuss how your organisation can support staff though the menopause, please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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Employers sometimes try to enforce contractual amendments on their workforce by using a “fire and rehire” strategy – terminating employment and offering to hire staff back on the new terms.  The Government has confirmed that it does not intend to legislate against such practices, but it asked Acas to publish new guidance for employers wanting to make contractual changes which Acas has now done.   In this article, we summarise the key points for employers and give our own tips at the end.

The guidance covers six in-depth sections, which can be found here and are summarised below.

Considering employment contract changes

Changes to employment contracts must be agreed by both employee (or in some cases with trade union or employee representatives) and employer. Some common scenarios which may make contractual changes desirable include introducing benefits such as enhanced maternity pay or updating contracts to accommodate new law or regulations.

Before proposing changes, it is helpful for employers to consider what issue they are trying to solve, and whether a contractual change will indeed solve it. Employers should also consider how the proposed change may impact the workforce, whether certain groups of people may be affected differently to others, and whether this amounts to unlawful discrimination.

Employers should also give thought to the number of employees which may be affected by the change and whether it is necessary to consult with employee representatives rather than only individuals. If terms and conditions are governed by a collective agreement (i.e. an agreement with a recognised trade union), then employers may be required to consult with that trade union.

Proposing employment contract changes

Whilst some contracts contain provisions purporting to permit employers to amend or vary contracts unilaterally, these are not failsafe clauses, and employers should not rely on “flexibility” clauses in contracts alone when trying to vary terms. Doing so risks claims of breach of contract and/or constructive dismissal.

Where employers propose contractual changes, they must inform all affected employees (and workers) and/or any relevant representatives about:

• what the proposed changes are;
• who might be affected;
• why the changes are required;
• a timeframe regarding the proposed changes; and
• any other options which the employer has considered.

Employers should open a consultation process to discuss the proposed changes and allow the employees and/or representatives to provide feedback. This should be done as early as possible to allow sufficient time to reach an agreement.

Consulting about employment contract changes

Consultation regarding proposed changes is helpful as members of staff are more likely to support them where they understand the rationale for them, they are given the opportunity to provide their views and feel that these have been properly considered.

As above, employers should consider whom the appropriate employees and/or representatives are to be consulted. Consultation should be a genuine two-way discussion between the parties, and employers should approach this with an open mind.  The aim should be to try to understand any concerns and address any questions raised during this process.  Employers should avoid being threatening, intimidating or giving ultimatums. Not only is this not conducive to having a meaningful consultation, but it may give rise to legal claims.

Providing training to those involved in the negotiations and consultations can assist in ensuring constructive discussion and increases the chances of the parties reaching a solution which is acceptable to all.

Handling requests to change an employment contract

Of course, it is not just employers that can propose contractual changes, but employees as well. Circumstances where employees may request changes to their existing contractual terms include making a request for flexible working or amending their contractual duties.

All such requests should be treated reasonably, and it is again advisable to have a discussion about the proposed change in order to understand why it is thought to be needed. Employers should then consider how they might be able to accommodate the request.

If employment contract changes are agreed

Where changes are agreed, it is important to record these in writing. For example, changes around pay, working hours and holiday entitlement form part of the written particulars which must be provided to an employee.  Therefore, it is safest to record all variations in writing.

If the change is going to be temporary, this should be explicit and a clear timeframe should be set out regarding when the change will take effect and for how long. Acas also recommends monitoring changes once implemented to ensure that the workforce is not being adversely affected, especially where the changes had been met with some resistance.

If employment contract changes cannot be agreed

Employers should keep in mind that agreeing changes does not always happen after the first consultation and will likely take some time. Patience is important to avoid unnecessary and costly legal claims as well as industrial action.

If employees are reluctant to agree, employers could consider alternatives or whether there is anything they could offer that would make the proposal more attractive, such as offering more beneficial other terms to compensate for the change. In addition, another practical suggestion is to introduce the changes gradually or on a temporary basis initially.

If an agreement cannot be reached, and considerable attempts have been made, in limited circumstances it may then be possible to give employees notice of termination of employment together with an offer to rehire them on the basis of the new terms. Doing so is not as easy as it sounds, and employees may resign and claim constructive dismissal or continue to work, but under protest, meaning they are still within their rights to bring claims against an employer.

In addition, where employers are proposing to dismiss 20 or more employees there is the added requirement to consult collectively about the proposed dismissals. Employers must also have a fair reason for dismissing employees, follow a fair process and provide the correct amount of notice.

Top tips for employers considering contractual variations

The overall message from Acas is that fire and rehire should be used as a last resort, given the damaging effect it can have on the trust, morale and productivity amongst the workforce. 

Some of this advice from Acas may be over cautious (e.g. not setting an ultimatum or time limit).  Our top tips for effecting changes to contracts are as follows:

• Consult with the workforce when making changes and try to reach agreement on the variations wherever possible.
• Listen to the views of the workforce and do consider whether any proposed amendments could be made to accommodate their views or suggestions.
• Remember that unilateral changes can be completely ineffective, can lead to legal claims and often do cause despondency, which, in turn may damage productivity and your reputation.
• Seek legal advice as early as possible.

If you would like to discuss any issues arising out of this article please contact Blair Wassman (blairwassman@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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In the recent case of Stott v Ralli Ltd the Employment Appeal Tribunal ruled that the dismissal of an employee was not an act of discrimination arising from disability.

What happened in this case?

The Claimant was employed as a paralegal by Ralli Ltd for approximately three months. She was dismissed for poor performance and was paid in lieu of notice. Following the dismissal meeting, the Claimant raised a grievance and stated that Ralli had been informed of her mental health issues in several communications. At the grievance meeting, she said that her disabilities were mental health issues, anxiety, depression and a heart condition. She claimed that her mental health issues had affected her performance.

Ralli rejected her grievance, stating that they had not been informed about her disabilities. Her appeal was also unsuccessful.   The Claimant went on to bring a claim in the Employment Tribunal for discrimination arising from disability in relation to her dismissal.  As she did not have two years’ service, she was not able to bring a claim for unfair dismissal. 

Ralli accepted that the Claimant had a mental impairment amounting to a disability at the time of her dismissal but argued that it had not known about this at the time and that it had only been raised after her dismissal.  In any event, it argued that any unfavourable treatment would have been justified.

The Employment Tribunal dismissed the claim, finding that the Claimant had been dismissed for poor performance and that the Claimant had not disclosed her impairment to Ralli prior to her dismissal.  The Claimant appealed on a number of grounds, notably that the Employment Tribunal should have regarded her grievance and the grievance appeal as an integral part of the dismissal process and should have concluded that, by the end of that process, Ralli had knowledge, or constructive knowledge, of her disability.

What was decided by the Employment Appeal Tribunal?

The EAT held that even on the most fair or generous reading the claim had been brought solely in relation to the dismissal.  Therefore, the Employment Tribunal had been correct to treat knowledge (or constructive knowledge) which had been acquired after the dismissal as irrelevant to the claim.

While in unfair dismissal claims dismissal is regarded as a process encompassing the appeal stage and outcome, the EAT held that there is no legal principle requiring the same approach to be taken in discrimination claims.   

What does this mean for employers?

Had the Claimant pleaded her claim more widely to include post-dismissal discrimination, relating to the grievance process and subsequent treatment (when the employer had knowledge of her disability) the outcome may have been different.  So, in reality, the employer got lucky.  In the ordinary course, if an employer has learned about dismissal during an appeal process, it may still be held liable for disability discrimination and so should act with due care when this happens.

Stott v Ralli Ltd

If you would like to discuss any issues arising out of this decision please contact Theo Nicou (theonicou@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

 

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