Full judgement here
Good news for a change: Stan Keable, secretary of Labour Against the Witchhunt, has defeated his employer’s appeal in the Employment Appeal Tribunal (“the EAT”), and that the EAT has upheld the Employment Tribunal’s findings that Mr Keable was unfairly dismissed and should now be reinstated.
The ET’s finding was upheld, that the Council had acted unfairly in dismissing Mr Keable for bringing the Council into disrepute, “when he expressed his political views in a lawful way, entirely away from the working environment, with no connection to thework at the time, even if those views caused offence to some people.”
His barrister, David Renton, commented “This is the first time in nearly a decade that an appeal court has upheld an order that a worker should be reinstated. Hammersmith and Fulham should now do the right thing and let him have his old job back”
Mr Keable was dismissed in May 2018 after attending a rally outside Parliament (“Enough is Enough”) at which both supporters and opponents of then Labour leader Jeremy Corbyn were present. Mr Keable was filmed at a great distance from his workplace, and footage of him speaking with another protester was shared without his consent on Twitter, where a journalist gave his words a misleading caption, “Anti-Semitism Didn’t Cause the Holocaust and Zionists Collaborated with the Nazis.” The film was seen by nearly 80,000 people.
He was investigated by Hammersmith and Fulham Council, who refused to put to Mr Keable the case which they then relied on in dismissing him – namely that the words he used were likely to be misunderstood online. Her Honour Judge Tucker upheld the finding of the original Tribunal that Mr Keable’s dismissal was unfair, and that it was wrong of the employer to dismiss him without putting its case to him: “A fair and open procedure, where there is cooperation, genuine and effective communication regarding a disciplinary charge, is far more likely to engender reflection, perhaps regret or expressions of remorse which may in turn lead to better performance in the future, than a hostile, unduly adversarial or closed procedure”. HHJ Tucker also upheld the Tribunal’s findings that Mr Keable should be reinstated.
Following the defeat of the employer’s appeal, R& A solicitors said, “The decision of the Appeal Tribunal vindicates Mr Keable, who faced terrible accusations of antisemitism, which he has shown were false. The employer wanted to make this case about Twitter. They said that what matters is not what a person said but how words are perceived on social media. This judgment shows that they have wrongly punished an innocent man.”
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From Dave Renton: My congratulations to Stan Keable, for successfully defeating his employer’s appeal against the Employment Tribunal’s finding that he had been unfairly dismissed and should now be reinstated by his employer Hammersmith and Fulham.
For those who don’t know Stan’s story, he was dismissed in May 2018 after attending a rally outside Parliament (“Enough is Enough”) at which both supporters and opponents of then Labour leader Jeremy Corbyn were present. Footage of him disagreeing with an anti-Corbyn demonstrator was shared without his consent on Twitter, where a journalist gave his words a false and offensive caption. The film was seen by nearly 80,000 people. His local MP denounced him, and the Chief Executive of the Council instigated his dismissal.
Stan has a Jewish wife and daughter, was shocked by the allegations. The Tribunal found his dismissal both procedurally and substantively unfair.
The judgment doesn’t give a full flavour of the case run by Stan’s employer which was that while Stan had never actually said that Zionists had collaborated with the Nazis in the Holocaust, what mattered was that that was how his comments would be taken. “This is a Twitter case,” their barrister said, meaning that where people take exaggerated offence on social media, and pose at being outraged, the employer must do what social media wants or its own reputation will be destroyed. The EAT – our leading specialist discrimination court – disagreed. No, they found, you still have to investigate fairly, which means (for example) putting to someone accused the offence for which you seek to dismiss them.
Stan is the Secretary of the group Labour Against the Witch-hunt, all members of which have been excluded from the Labour Party since June. I am sure that group will say that this judgment supports their position that complaints of antisemitism need to be investigated properly. I have made many public criticisms of members of that campaign. However, on this specific complaint – that Labour investigations are getting worse – they are right, and this judgment supports their case that such investigations must in future be done fairly.
In particular, I suspect that para 91 (“A fair and open procedure, where there is cooperation, genuine and effective communication regarding a disciplinary charge, is far more likely to engender reflection, perhaps regret or expressions of remorse which may in turn lead to better performance in the future, than a hostile, unduly adversarial or closed procedure”) is going to be quoted in a lot of other cases from now on.
This is one of an incredibly small number of cases that has come to trial as a consequence of Labour’s antisemitism crisis and (unless I am mistaken) the only one which has been won by someone whose politics are left and anti-Zionist. The fact that Stan has succeeded, in this difficult context, is a huge tribute to him and the way he fought his case.
Finally, I want to say something about the order for reinstatement. Last time I checked, 20,000 unfair dismissal cases are issued each year, 5,000 make it to a final hearing, at which half succeed. Of those 2,500 or so victories ever year, fewer than five every year resulted in reinstatement orders. Not five hundred; five. Almost all of them are appealed by the employer, who usually wins. It is eight years since the Employment Appeal Tribunal last accepted that an order for reinstatement had been rightly made. The fact that Stan won on that issue, too, is again a huge vote of legal confidence in him, and will make life easier in future for every other dismissed worker seeking their own reinstatement.
Well done, Stan, it was a pleasure representing you.
Dave Renton