The importance of due process, communication and fairness in employee conduct investigations – what you need to know.

On 26 October 2021 the EAT upheld the decision that the London Borough of Hammersmith and Fulham had unfairly dismissed an employee when they had not given him an opportunity to respond to specific allegations during the disciplinary process.

In this case, a video of the Claimant clashing with a demonstrator outside of Parliament was posted on social media. The controversial clash of opinions raised allegations of anti-semitism against the Claimant, he was identified through social media as a member of a political party and an employee of the Council. The Council dismissed the Claimant because of this external conduct.

The Employment Tribunal decided the dismissal was unfair due to procedural failings in that the Council had made it clear the key allegations in the internal process or given the C an opportunity to comment before a decision made and had failed to consider alternative sanctions.

The Council appealed the decision. The Employment Appeal Tribunal (EAT) upheld the Tribunal decision finding that the Council’s failure to explain to the Claimant why his relevant comments would bring the Council into disrepute or, alternatively, how the Council considered those comments would be interpreted was procedurally unfair.

Key takeaways:

1. Communication is key- even if an employer thinks the issues are blatantly obvious, it is still imperative to follow a fair process in that;
2. The allegations of misconduct are explained clearly; and
3. The Employee has a right to comment on those allegations before a decision is made
4. Decisionmakers need to be satisfied that they can justify their findings and must be clear in the outcome how they have reached the decision, especially in cases relating to reputational damage.
5. Dismissal is not automatic when a finding of gross misconduct is not automatic in a case of gross misconduct. A decision maker must still consider the appropriate sanction.
6. The decision making process should be transparent so should be set out in writing at the time.

Case Reference:

London Borough of Hammersmith and Fulham -v- Mr S Keable [2021] UKEAT 2019-000733

Julie Bann is a Partner and James Hughes is a Trainee Solicitor at Sharpe Pritchard LLP.

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