05.09.2019

Reputational self-harm

Hammersmith and Fulham council is appealing against the employment tribunal’s decision that its dismissal of Stan Keable was ‘unfair’. Ed Kirby reports.

Stan Keable was sacked by Hammersmith and Fulham borough council for the critical words on Zionism he spoke during a civilized exchange at the ‘Enough is Enough’ demonstration and Jewish Voice for Labour counterdemonstration on Parliament Square in March 2018. He was fully exonerated by an employment tribunal, but council officers have decided to appeal. If that appeal is allowed to go ahead, not only will more precious funds be wasted on lawyers’ fees, but the council’s reputation will be further damaged.

The appeal is, of course, politically motivated. Stephen Cowan, the Labour leader of the council, wants to uphold the British’s establishment’s ‘Anti-Zionism equals anti-Semitism’ false narrative. In this Stan Keable is not the real target. That is Jeremy Corbyn - and the entire Labour left. In the attempt to see the back of Corbyn, the Labour right is quite prepared to extend the ‘Anti-Zionism equals anti-Semitism’ witch-hunt from the Labour Party into the workplace.

The council’s failure at the five-day tribunal hearing in May - a full year after Stan Keable’s dismissal - was humiliating. Judge Jill Brown found that the dismissal, for “serious misconduct”, was “both procedurally and substantively unfair” and “well beyond the range of reasonable responses of a reasonable employer”.

Stan Keable has asked for reinstatement, and his work colleagues are looking forward to welcoming him back into the housing team. Departmental director Nicholas Austin - the man who formally sacked him - told the tribunal that he had “an entirely clean disciplinary record”, was “good at his job” and described him as “good, thorough, dogged in pursuit of landlords in trying to improve housing conditions”. The issue of reinstatement was due to be resolved, along with appropriate compensation, at an October 2 “remedy hearing” - which may now be postponed, extending Stan Keable’s time in limbo. Hopefully, the tribunal will refuse permission to appeal. Criticism of Zionism and Israel should be calmly debated, not gagged and banned.

On March 27 2018 - the morning after the ‘Enough is Enough’ demonstration, supposedly against Jeremy Corbyn’s anti-Jewish racism - Cowan forwarded to the council’s chief executive officer a 105-second video clip - an extract from a political conversation in Parliament Square between Stan Keable and an unknown man, which had been publicly tweeted by Chelsea and Fulham Tory MP Greg Hands. Cowan’s email stated:

LBHF [London Borough of Hammersmith and Fulham] employee Stan Keeble [sic] making anti-Semitic comments. I’ll let Mr Keeble’s words speak for themselves. I believe he has brought the good name of LBHF into disrepute and committed gross misconduct. Please have this looked at immediately and act accordingly and with expediency … Please advise me at your earliest opportunity what action you have taken.

Hands’ malicious tweet, tagged to Cowan and Hammersmith Labour MP Andy Slaughter, was not a complaint to the council, but a public attack on the Labour Party, smearing the party as a home for anti-Semites. Stan Keable’s employment at LBHF was unknown to Hands, but well known to Cowan, who seized the opportunity to extend the scope of the anti-Corbyn witch-hunt to the workplace. Cowan was, at this stage, the only complainant - joined later only by Greg Hands himself. His Twitter campaign to drum up a storm of protest - and of BBC Newsnight journalist David Grossman, who first tweeted the video publicly - produced zero results. Tens of thousands viewed the offending video, Stan Keable’s comments were reproduced in the Evening Standard and Mail Online - surrounded, as usual, by reports of unsubstantiated allegations of anti-Semitism in the Labour Party - but no-one complained to H&F council. Hands and Cowan were alone.

By labelling Stan Keable’s comments “anti-Semitic” and saying “gross misconduct”, Cowan effectively instructed council officers to suspend and dismiss him. Judge Brown found that they were “clearly put under very considerable pressure by Mr Hands MP and by councillor Cowan to dismiss the claimant”.

Four hours after Cowan’s email, Stan Keable was unceremoniously suspended from work - on charges which did not include anti-Semitism. One presumes that the council’s lawyers had pointed out that telling well documented, historical truths about the Zionist movement did not constitute racism. That would have been a good moment to tell Cowan that he was wrong and advise him to drop the matter. But an instruction is an instruction. Omitting the leader’s unsustainable “anti-Semitism” complaint, the suspension letter described the comments as “inappropriate”, “insensitive”, “likely to be considered offensive” and having “the potential to bring the council into disrepute”.

The tribunal, however, took a different view. Judge Brown “found that the claimant’s demeanour throughout the video clip was calm, reasonable, non-threatening and conversational”.

Stan Keable was not told that the complainant was the council leader, nor the substance of the complaint - that it was explicitly about “anti-Semitism” - those embarrassing facts were only revealed a year later, shortly before the tribunal hearing. Nor did the suspension letter specify which comments were considered “offensive”. The original complainant (Cowan) had not done so. Two “offensive” comments were eventually selected by the investigating officer, Peter Smith: (1) “the Zionist movement at the time collaborated with them” (ie, the Nazi regime), and (2) “The Zionist movement from the beginning was saying that they accepted that Jews are not acceptable here” (ie, in the countries where they currently live).

Stan Keable’s Jewish former wife, Hilary Russell, had already very helpfully emailed the council: “I can say absolutely confidently that he is no anti-Semite … it is not anti-Semitic to be opposed to Zionism, as many Jews are, or to criticise the government of Israel.”

Keep digging

This would have been a good moment for Smith to climb out of the hole he had been dropped into and close the case. But he chose to keep digging, adding the Equality Act 2010 to the allegations. If anti-Semitism won’t stick, let’s try anti-Zionism.

He wrote: “If Zionism constitutes a belief under the terms of the Equality Act, then the statements made by the claimant that the Zionist movement collaborated with the Nazis and that it accepted that ‘Jews are not acceptable here’ might be deemed to have breached the Equality Act” and “do not promote inclusion nor treat everyone with dignity and respect and … have breached the council’s Equality, Diversity and Inclusion Policy”.

Subsequently, whether a belief in Zionist ideology should be considered a protected characteristic under the Equality Act was neither claimed by the council nor determined by the tribunal. In any case, the act does not forbid criticism of a protected “religion or belief”: it outlaws harassment, discrimination and victimisation of believers. But the council “did not find that the claimant had made anti-Semitic or racist or discriminatory remarks”, so this seed fell on stony ground.

In his zealous search for a case to answer, Smith concluded his investigation report by adding a truly Orwellian allegation to the charge sheet, effectively saying that council employees must not attend demonstrations:

That, in attending a counter-demonstration outside the houses of parliament on March 26 2018, Stan Keable knowingly increased the possibility of being challenged about his views and subsequently proceeded to express views that were in breach of the council’s Equality, Diversity and Inclusion Policy and the council’s Code of Conduct …

Unsurprisingly, the tribunal upheld the right to demonstrate. The judge concluded that Stan Keable’s comments were “an expression of his views and beliefs. The claimant, as other employees, had the right to freedom of expression and assembly, which would normally include attending rallies and expressing their views there.” As Justice Michael Briggs commented in the High Court (Smith v Trafford Housing Trust [2013] IRLR 86, HC),

The encouragement of diversity in the recruitment of employees inevitably involves employing persons with widely different religious and political beliefs and views, some of which, however moderately expressed, may cause distress among the holders of deeply felt opposite views. The frank but lawful expression of religious or political views may frequently cause a degree of upset, and even offence, to those with deeply held contrary views, even where none is intended by the speaker. This is a necessary price to be paid for freedom of speech.

Quite so.

Unable to dismiss Stan for anti-Semitism or anti-Zionism, the council’s attempt to establish “misconduct” for being “offensive” failed at the tribunal. The judge “took into account the line of case law which says that for a single act of misconduct to justify dismissal it must be serious, wilful and obvious”:

The misconduct must be obvious; it must be such that the employee would plainly recognise it as conduct which would merit summary dismissal if discovered by his employers. Such recognition might be either because the employers had expressly made known to their staff that a particular type of misconduct would be treated as a dismissible offence or because the employee, judging the matter for himself according to the ordinarily accepted standard of morality of the time, would recognise dismissal as the predictable consequence of such misconduct (Bishop v Graham Group plc EAT 800/98).

The basis of the decision to dismiss Stan Keable was Nicholas Austin’s personal view that “the average person would interpret the claimant’s comments as suggesting that Zionists collaborated with the Nazis in the holocaust and that that was highly likely to cause offence”. However, the judge disagreed: “Mr Smith had not interpreted the claimant’s comments in that way, nor had Mr Hands in his tweet or letter … and nor had the other evidence which Mr Smith had relied on from the Mail Online or the Evening Standard.”

Why is a Labour council pursuing this pathetic case - wasting public money in pursuit of the restriction of our hard-won rights of freedom of speech and assembly? These rights are the products of, above all, the class struggle of the workers’ movement, from the Chartists onwards. This case illustrates the fact that the class struggle is taking place at present in a sharp form within the Labour Party - councillor Cowan has placed himself firmly on the side of the ruling class.

One can only assume the council is counting on the legal strategy of “deep pockets wins”. Stan Keable’s legal costs, if the appeal is permitted, are likely to rise above £10,000. Readers are urged to contribute at http://www.gofundme.com/ReinstateStanKeable