Thread by @JasonBraier

1/ LBH&F v Keable: EAT upholds ET reinstatement order whilst upholding an unfair dismissal finding where the allegation wasn't clearly set out & the dismissing officer didn't provide an opportunity to comment on lesser sanctions before dismissing
bailii.org/uk/cases/UKEAT…
#ukemplaw

2/ Bizarrely, I was present at the place where the events leading to this dismissal took place. K worked for LBHF & attended the counter-protest to the Enough is Enough rally outside Parliament against Labour antisemitism. He did so as secretary of Labour Against the Witch-Hunt.

3/ To be clear, I was there in support of the Jewish community's concern at the stain of antisemitism, rather than part of the counter-protest seeking to downplay or repudiate those concerns, but I suspect I was within Mr Keable's earshot.

4/ He got into discussion with a protest attendee, in which he cited the 1933 Haavara Agreement as evidencing Zionist collaboration with the Nazi party in the lead-up to WW2 & the Holocaust. If it sounds familiar, it's probably because it was Ken Livingstone's favourite argument.

5/ It famously led Ken Livingstone to hide from the now Lord Mann & reporters in a Parliamentary disabled toilet, & it had it also caused Mr Keable's career to be unceremoniously flushed down the loo (until the ET reversed matters). It's a highly controversial narrative to deploy

6/ K's comments were filmed. They went viral, were picked up by Greg Hands MP & then by the Labour leader of LBHF, who complained. K was suspended, investigated & dismissed, his comments held as reasonably read as saying Zionists & Nazis collaborated in the Holocaust.

7/ An ET found K's dismissal unfair, noting that the interpretation of his comments in dismissing him wasn't that put in the allegations & also relying on the social media Art 8 cases of Smith v Trafford & Game Retail v Laws in finding dismissal unreasonable in its context.

8/ That context was one in which K's comments were off the cuff, not found by the dismissing officer to be antisemitic or threateningly stated & were said at a demo he was entitled to attend & did so without anything about him to mark him out as a council employee.

9/ The ET also found the dismissal unfair in circumstances in which the possibility of a lesser sanction hadn't been put to K for comment.

10/ In respect of remedy, the EJ found there should be no Polkey reduction but a 10% contrib reduction for the rudeness of the written submission of K's union rep. The union rep was Tony Greenstein, who'd described the investigatory report as 'spurious nonsense & similar.

11/ It was that 10% reduction (& the identity of the union officer, whose reputation is infamous amongst those concerned by antisemitism in Labour & elsewhere) that caught my eye in putting out a rare thread when this case was in the ET:

https://twitter.com/JasonBraier/status/1150527422581936133

(see tweet 3)

12/ The ET ordered K's reinstatement, noting the job was still open, he wasn't found antisemitic, he had a long unblemished record & continued good relations with colleagues, & had said he would be more cautious in future conduct.

13/ LBHF appealed both the liability & remedy decisions. On liability, they suggested a misdirection on the range of reasonable responses test & an error in relying on Smith without putting it to the parties for submissions 1st.

14/ On remedy, LBHF's concern was that the ET found no loss in trust & confidence even though finding they dismissed for serious misconduct, & that that should also have fed into a finding of impracticability of reinstatement.

15/ The EAT found on liability the ET didn't fall into the error of substitution, but legitimately concluded K hadn't been clearly told by his employer the case against him re how LBHF considered his comments would be interpreted & thus lacked forewarning of the case against him.

16/ Whilst it may have been legitimate for the dismissing officer to form the view that K's comments could be interpreted as saying Zionists collaborated with the Nazis in the Holocaust, that case needed to be put to him for a fair hearing.

17/ Perhaps a little more surprisingly, the EAT upheld the ET's finding of unfairness in not giving K an opportunity to comment on whether the lesser sanction of a warning would have been appropriate. That arguably is a paragraph claimant lawyers might wish to hold close.

18/ In my experience, it's often the case that dismissing officers give employees a general opportunity to comment on mitigation & then gives the level of sanction active consideration behind closed doors. Would this render that unfair? Perhaps.

19/ The next para gives succour to that concern. I'm not convinced this isn't a comment too far, & that viewed through a range of reasonable responses lens an employer needs not necessarily follow her advice for the decision to dismiss to be fair, even in evenly balanced cases.

20/ As regards Smith, whilst the EJ should have put it to the parties, the EAT wasn't satisfied the failure here amounted to a serious error of law. It wasn't crucial to the decision made & putting it to the parties wouldn't have led to a different conclusion.

21/ Finally, on remedy, even if the dismissing officer believed K guilty of misconduct, in an organisation as big as LBHF that didn't necessarily mean the employer had lost trust & confidence in him. On the evidence, the EJ was entitled to reach the conclusion he did.

22/ I fear that this is a judgment which may end up being misrepresented as having wider political implications than it does. K is secretary of Labour Against the Witch Hunt, which has painted the EAT judgment as a 'vindication' & has paid tribute to him. That is unfortunate.

23/ The EAT judgment is no vindication, but merely an acknowledgement of errors in procedure which the EAT considered entitled the ET to find the dismissal unfair, & where in the context of K's employment the ET was entitled to order reinstatement.

24/ Had the procedural errors not been made & had the comments been made within the workplace or in a work context rather than away from work, I have little doubt that a dismissal for repeating Livingston's awful Haavara Agreement mantra could result in fair decisions to dismiss.

As an aside, fascinatingly Tony Greenstein (the union rep who cost his colleague 10% of compensation) wrote an excoriating article yesterday on Mr Keable's counsel's recent book titled 'Labour's Antisemitism Crisis'. The victory drink may prove awkward! azvsas.blogspot.com/2021/10/blamin…