Mr I Sram, Counsel For v Respondent — 2019

The claimant, a local authority environmental health officer, was dismissed after comments he made at an anti-Semitism-related demonstration on 26 March 2018 were filmed by a third party, circulated on social media, and linked to him as a council employee. The tribunal found that the remarks were made outside work, in his private capacity, that he did not publish them himself, and that the respondent did not find them to be discriminatory, racist, anti-Semitic, unlawful, criminal, threatening, or abusive. The claimant had not been in a politically restricted post, and the tribunal accepted that he was entitled to attend demonstrations and express his political views in his own time.

The tribunal accepted that the respondent had a potentially fair reason for dismissal in conduct. It found that the comments, once publicised and associated with the council, did reflect in some way on the employer-employee relationship. However, the tribunal held that the dismissal was both procedurally and substantively unfair. Mr Austin dismissed the claimant on a basis that had not been clearly put to him: namely, that he was said to have suggested that Zionists collaborated with the Nazis in the Holocaust. The tribunal found that this was not the allegation set out in the investigation report, and that the claimant was not given a fair opportunity to answer that version of the case.

The tribunal also held that Mr Austin acted unreasonably in concluding that dismissal was justified without first putting to the claimant whether a warning would be sufficient and whether he would heed one. It relied on Smith v Trafford Housing Trust and Game Retail Ltd v Laws in concluding that the lawful expression of political views outside work, even if offensive to some, did not make dismissal a reasonable response on these facts, particularly where the employer had not made clear that such conduct could lead to dismissal and the claimant had 17 years of service with a clean disciplinary record. The tribunal rejected a Polkey reduction, finding there was no likelihood that a fair procedure would have led to fair dismissal.

On contributory fault, the tribunal made a 10% reduction because the claimant’s written submission for the disciplinary hearing, drafted by a union representative, was found to be rude, derogatory and personally insulting to the investigating officer, and that did contribute to the dismissal. The tribunal did not reduce compensation for the claimant’s remarks at the rally, finding that those comments, made in a spontaneous conversation rather than a considered publication, were not blameworthy in the contributory fault sense. No remedy figures were recorded in this judgment.