A council worker who was filmed making potentially offensive comments about Jews during a political rally was unfairly dismissed, and employment tribunal (ET) has ruled.
Stan Keable, who worked for Hammersmith and Fulham Council (HFC), was dismissed after complaints were lodged when a video of him arguing that the Zionist movement collaborated with the Nazis went viral on Twitter after it was posted by a BBC journalist.
However, the London Central ET ruled that Keable’s comments – which may have been offensive to some – were not discriminatory or unlawful and were made outside the workplace, not in breach of the council’s workplace policies.
Keable worked for HFC from 19 March 2001 as public protection and safety officer for the Environmental Health department until his dismissal on 30 May 2018. Until this incident he had maintained an unblemished disciplinary record for 17 years.
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On 26 March 2018, Keable attended a rally in support of Labour leader Jeremy Corbyn. It was counter protesting another rally campaign group – Enough is Enough – concerned about anti-Semitism in the labour party.
The tribunal heard Keable attended in a personal capacity outside of work hours and was not wearing anything that could identify him as an employee of HFC.
During the protest, Keable was filmed having a conversation with an Enough is Enough protester. During part of the exchange, Keable is asked if he thought anti-Semitism caused the Holocaust, to which he responds: “I don’t think that is what caused the Holocaust, no,” before clarifying: “I am saying that the Nazis were anti-Semitic. The problem I have got is that the Zionist movement at the time collaborated with them.”
The 105-second clip was subsequently shared on Twitter by BBC Newsnight journalist David Grossman with the caption: “Anti-Semitism Didn’t Cause the Holocaust and Zionists Collaborated with the Nazis”. The clip was viewed over 79,000 times and Keable was identified by several users. Hammersmith and Fulham MP Greg Hands retweeted it, and called for the clip to be investigated by the council.
It then came to the attention of Cllr Steven Cowan, the Labour leader of the Respondent Council who emailed senior council members, advising Keable had committed gross misconduct.
Nicholas Austin, director of residents' service at the council and chair of the disciplinary hearing, conducted an investigation where he concluded that Keable’s actions breached the Code of Conduct for HFC’s employees and brought the council and its reputation into disrepute.
Austin considered giving Keable a warning but, because during a hearing Keable argued that the Human Rights Act gave him the “freedom of expression including a qualified right to offend”, Austin did not believe Keable would heed a warning.
Austin decided to dismiss Keable from his employment with pay in lieu of notice on 30 May 2018 and denied that political pressure had influenced his decision.
Employment Judge Brown ruled HFC had not come to the conclusion that Keable had made discriminatory, racist, or anti-Semitic statements, nor did it amount to a criminal offence. He added that Keable had not breached any of the council’s policies and that HFC had not made it clear to employees that “expressing lawful political beliefs which could cause offence, outside the workplace, might result in disciplinary sanctions and, particularly, that they could result in dismissal.”
Furthermore, Brown decided that Austin acted outside the band of reasonable responses in failing to give Keable an opportunity to comment on whether a warning would be an appropriate outcome.
Brown said: “[Austin] did not have reasonable evidence for concluding that the Claimant would not have heeded a warning.”
Rachel Reeves, counsel at Allen and Overy said, said that while an employee’s actions outside their employment may be offensive and inappropriate to some, “if they do not directly impact the reputation of the employer and are not associated with the employer, it is not necessarily a fair and proportionate response to dismiss someone who otherwise has a 17-year unblemished career history with an employer.”
Reeves added there may be other, more appropriate, sanctions open to an employer – such as a warning – which could convey an employer’s disapproval without dismissing an employee for a first offence.
Hammersmith and Fulham Council has not yet responded to a request for comment. Keable could not be reached for comment.