A council worker attended a rally in support of Jeremy Corbyn and the issue of anti-Semitism in the Labour Party. Unfortunately for him, his comments were filmed by the BBC and shared on twitter. Various people retweeted the video, identifying him, which caused complaints to be made to his Council employer.
The Council dismissed him without notice on the grounds that he had breached policy and brought the Council into disrepute.
He disputed the dismissal and the Employment Tribunal agreed with him, holding that his comments were not unlawful or discriminatory and, having been made outside of work and not visibly connected to the Council, his dismissal was unfair.
However, the most interesting part of this decision relates to the Council's consideration of whether a formal warning would have been a sufficient disciplinary outcome. The Council concluded that, because the employee had claimed a right to freedom of expression, he would not heed a warning. In this respect the Employment Tribunal said that the Council did not have sufficient evidence for this conclusion. The question is then whether this gives rise to an obligation on employers to always ask an employee about a possible disciplinary outcome before imposing it?
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.