Firefighter and ‘Blue Labour’ political activist Paul Embery was unfairly dismissed from his union job after speaking at a pro-Brexit rally, an employment tribunal has found.
Embery had been employed by the London Fire Brigade but was released to conduct Fire Brigades Union (FBU) duties as a full-time regional official in London between 2008 and 2019.
On 29 March 2019 Embery appeared at a Leave Means Leave rally and voiced his support for Brexit, telling the crowd that the UK should pursue a no deal policy if necessary.
Norwich Employment Tribunal heard that leading up to the rally there had been frequent disagreements between Embery and FBU general secretary Matt Wrack over Brexit, with Embery even being accused of siding with the far right.
FBU president Ian Murray warned Embery that he should not attend as a speaker and that to do so could breach the union’s policy against Brexit, which passed in 2016.
A few weeks after the rally, after an investigation, Embery was removed from his role as a union official and barred from being an FBU official for two years.
Over a three-day hearing tribunal in February this year the union contended Embery displayed gross misconduct in his role.
But the tribunal ruled that although Embery had not been dismissed for supporting Brexit itself, he had been unfairly dismissed after a “witch hunt” with a pre-determined outcome.
The FBU said it was disappointed with the findings and that it was assessing its options.
Embery said in his 2019 speech that the “message to the leaders of my movement is, if you want to stay relevant, then it’s about time you put yourself on the side of the people over the establishment and big business, and you better do that damn quickly”.
The FBU’s ensuing investigation concluded the speech did not exempt FBU officials from criticism and found Embery had gone against the union’s anti-Brexit policy and had appeared alongside individuals – namely right wing activist Nigel Farage and businessman Richard Tice – “with whom there should be no shared platform”.
🚨 BREAKING: I have WON my claim for unfair dismissal against the Fire Brigades Union (@fbunational) after I was sacked in relation to a speech I gave to a pro-Brexit rally in 2019. Statement below. ⬇️ pic.twitter.com/usjkEf1rk6
— Paul Embery (@PaulEmbery) August 5, 2021
Embery’s behaviour was “prejudicial to the interests of the union” found the FBU inquiry before removing him from office for gross misconduct and barring him from standing as a union official for two years.
Employment judge Robin Postle found, however, that Embery was unfairly dismissed under the Employment Rights Act 1996.
He said the finding of gross misconduct “was not a reasonable response that a reasonable employer would or should make on the history of the claimant’s campaigning with the open knowledge of the union”.
The tribunal agreed with Embery that the union’s anti-Brexit policy, formulated before the referendum in 2016, did not apply at the time of the rally in 2019 because the referendum effectively made it irrelevant.
The judgment added: “Where is the gross misconduct? How could any fair minded member come to a reasonable belief on the facts that the claimant had committed any form of misconduct?”
Some aspects of the union’s investigation looked like a “witch hunt, a fishing exercise” with its outcome pre-determined, the judge added.
Embery responded to the ruling by saying that while he was glad justice had been served, he took “no pleasure in the outcome”. He added: “It was an honour to serve as an FBU official for 20 years, and I remain to this day a proud member of the union.”
An FBU spokesperson said: “We are disappointed with the findings and we do not agree with the decision. However, we have only recently received it and are still considering the matter. We are assessing our options for next steps.”
For Stephen Moore, partner and head of the employment team at law firm Ashfords, the case reinforced the point that organisations needed to ensure the reasons they were dismissing an employee were still applicable and needed to be complied with.
He said: “To defend a claim for unfair dismissal an employer has to prove that the reason for the dismissal was fair and that the process used to dismiss the employee was fair.
“In this case, the Fire Brigades Union (FBU) held that Mr Embery had gone against the FBU’s anti-Brexit policy and did not exempt FBU officials when criticising those who continued to oppose Brexit during his speech at a rally. The employment tribunal held that the dismissal was unfair because this was not a reasonable response open to a reasonable employer to make in light of Mr Embery’s campaigning history that the FBU had knowledge of. The tribunal agreed that the anti-Brexit policy the FBU sought to rely upon no longer applied at the time of the rally.
“Employers should ensure that if they are attempting to dismiss an employee for not complying with a policy that the policy is still effective and capable of being relied upon. It was noted by the tribunal that Mr Embery’s speech didn’t mention his role within the FBU which contributed towards the finding of an unfair decision. Turning to the process followed, the tribunal argued that there appeared to be a pre-determined outcome to dismiss.
“When carrying out a dismissal process, employers should carry out an open and thorough process to investigate the allegations and decide on an appropriate outcome without having a predetermined decision in mind. The tribunal made the point that Mr Embery’s pro-Brexit beliefs were protected as a philosophical belief under the Equality Act 2010. Employers should be careful about any discrimination claims that could arise as a result of disciplining an employee for exercising their political views,”