A Claimant worked at a hotel for almost five years without incident.
The hotel was then purchased by the Respondent, a completely different hotel
brand which put a different staffing structure in place and introduced
different ways of doing things (when we say 'introduced', we mean
staff only found out the Respondent's way of doing things when they got
pulled up for doing things wrong. There was never any induction by the
Respondent to explain their new ways). The Claimant and several
other staff were TUPEd over to the Respondent.
four months of the Respondent buying the hotel, the Claimant had been
given his first ever warning which was a Final Written Warning for a
private Facebook comment which was disclosed to the Respondent by a
member of staff. Had the comment been posted public for all to see it
would have fallen into the scope of 'conduct'
as the company had a 'social networking' policy albeit just one
short paragraph. However, the comment was private to just a few friends
and family and as such was protected by
Article 8 of the European Convention on Human Rights (ECHR)
which provides a right to respect for one's "private and family life,
his home and his correspondence.
Article 8 means the Respondent breached the Claimant's human rights by
sanctioning him for a private Facebook post to his friends and family. The comment
itself was silly, a one off occurrence in which the Claimant was letting
off steam to his family and friends, and although the Respondent had no
evidence that their business had been brought into disrepute or that
damage had been caused,
they exaggerated the effects of the comment to gain the maximum sanction
possible (they were originally looking for dismissal). The
warning itself was given contrary to company disciplinary procedures and
challenged by the Claimant; but the warning was upheld on appeal.
months after that the Claimant was dismissed. The dismissal was in
relation to the Claimant making a judgement call based on all the
information he had at the time. It was part of the Claimant's job to
make such judgement calls and as far as he knew, the Respondent had
given him all the relevant information he needed in order to do that
part of his job. To dismiss the Claimant the Respondent again
exaggerated the effects of the Claimant's actions and also relied on
relevant information which they had never disclosed to the Claimant;
information which would have altered the judgement call had it been
disclosed. The dismissal itself was contrary to company disciplinary
procedures and challenged by the Claimant; but the dismissal was upheld
on appeal. As you will see further on in this site, the Respondent admit
they had no procedures in place for the Claimant to follow which means
they had not given the Claimant any guidance on the issue; so the
question here is, did the Claimant's actions in this instance fall into
the scope of 'conduct' or was it a 'training issue'? If,
as the Respondent would have us all believe a manager was always
required to be on site at all times, but the previous owners never had
such a requirement, and the Respondent never informed the Claimant of
any such requirement after they took over, and there were no procedures
in place stating such a requirement existed, that suggests it was a
communication and training issue which could have been easily resolved
by the Respondent putting procedures in place and then training the
Claimant on those procedures. The
Respondent however turned it into a 'conduct' issue and laid the
blame squarely on the Claimant without taking any responsibility
themselves for their failure to have procedures in place or their
failure to communicate with the Claimant.
Written Warning was taken into account when the Claimant was dismissed.
The dismissal was for leaving a
‘non-manager’ employee in charge of the morning shift,
for an hour, when the Early shift Manager phoned in sick. The Respondent
stated the cover left in place by the Claimant was
‘insufficient’ and it had
'put the health and safety of guests and the running of the hotel at
risk'; which were very serious allegations (from the date
of the incident, to the date of dismissal, was about a month. In that
Claimant was allowed to work his job, sometimes on his own. By allowing the Claimant to work alone, in charge of the hotel at
night, the Respondent clearly didn't see the Claimant as a further cause
for concern - however this was not taken into account at disciplinary
hearing, appeal hearing or, tribunal hearing).
notes from the second disciplinary process, although incomplete, show that the Respondent
could not decide on the reason why the staff left on site by the
Claimant were 'insufficient'.
The reason for the investigation was to find out why the Claimant left the hotel
without a 'manager' on site - nothing more.
After being invited to a disciplinary
hearing, the Claimant based his entire case on the issue of a 'manager' not being on site, because that
is why he was investigated and the Respondent did not give any other
reasons prior to the hearing as to why the cover staff were 'insufficient'.
reason at commencement of disciplinary hearing was because the staff
left on site were not 'management'; the Disciplinary Officer even gave a
short speech as to why there needed to be a
manager on site; he did this to emphasise the importance of having a manager
The Claimant met the 'Management' argument by
pointing out the Respondent themselves leave other night staff in charge
who are not 'management'. The Disciplinary Officer
responded by stating the other night staff were managers under the
Respondent because they
were managers prior to TUPE.
then met that argument by confirming with the other night staff that
they were not, and never had been, managers. The Claimant also disclosed
copies of the night staff contracts which were in force prior to TUPE
which supported that they were not managers.
The Disciplinary Officer responded by point blank
denying he ever stated the other night staff were managers (even though
it was documented in the disciplinary notes that he did), he now stated
the other night staff were not managers but that they had done special
training which was given to them by the Claimant so they could be left
on their own without a manager.
The accusation against
the Claimant was that he left the hotel without any management on site.
The Disciplinary Officer admitted during the disciplinary hearing that they
themselves leave the hotel without any managers on site. That should
have been the end of the matter and lessons learned.
However, the Respondent wanted rid of
the Claimant so, because the Claimant had
met the 'Management' argument,
the Disciplinary Officer then changed the accusation during the disciplinary
hearing from one of 'management' not being on site to one of the cover 'staff'
not being trained. By doing
this the Respondent was now holding a disciplinary hearing in regard to
allegations which had not been disclosed to the Claimant prior to the
hearing and which the Claimant had not been given time to prepare for.
not being informed beforehand of the new allegations regarding staff
Claimant still met the argument regarding him giving night staff
'special training' because he was their line manager and knew what
training he had given them, and he had not given them any such training;
no training records were disclosed showing that he had done. On
the Claimant meeting that argument the Disciplinary Officer simply
changed the subject and carried on with the hearing.
point during the disciplinary hearing did the Disciplinary Officer state, or put to
the Claimant, that there was always a 'sleep-in manager' on site when
the Claimant was off work.
managers always slept over, this was the time for the
Disciplinary Officer to put that information forward; but he did not.
Always having 'Sleep-in Managers' on site was something which had
never been investigated, established or put to Claimant so he could have
fair opportunity to meet the argument.
At no point
during the disciplinary hearing did the Disciplinary Officer state,
or put to the Claimant, that the other night staff were
other night staff were 'Duty Managers', this was the time for the
Disciplinary Officer to put
that information forward; but he did not.
The other night staff being 'Duty Managers' was
also something which had never been investigated, established or put to
Claimant so he could have fair opportunity to meet the argument.
Officer had relied on the other night staff being 'managers' which
allowed them to be on site alone. However, after
it was established the other night staff were not
'managers', the Disciplinary Officer simply changed his so called 'belief'
and suddenly relied on them having 'special training'. Either way he
wasn't disputing that the other night staff had ever been left on site without a manager, he was coming up
with excuses as to why they were able to be left on site without a manager. It was
only at Employment Tribunal, 14 months later, that the Respondent decided the night
staff were 'Duty Managers' (despite accepting during Disciplinary
Process that they were not 'managers') and, the Respondent also stated
the night staff were never left on there own because there was always 'Sleep-In Managers' on
site when the Claimant was off work.
What Respondent stated at
Employment Tribunal was different to what they stated at Disciplinary
Hearing; and it's what they stated at Disciplinary Hearing that Claimant
defended against during disciplinary!
Respondent did not disclose any evidence, or carry out any further
investigations at any stage of the process, to verify or refute the
Claimant's evidence; they simply relied on their own alleged
knowledge without putting it to any test. The Claimant was dismissed and
a subsequent appeal hearing, which Judge Horne stated was not
conducted as prescribed by the Respondent's own disciplinary procedures,
upheld the dismissal.
At the Employment Tribunal, the Disciplinary and Appeal Officers both
stated that they had trained the other night staff. Of course they did
not disclose any documentary evidence in support of this - such as
training records. The Disciplinary Officer's statement contradicted
the disciplinary notes as they have no mention of him training the other
night staff - instead the notes show the Disciplinary Officer had
assumed the Claimant trained the other night staff prior to TUPE. The
Appeal Officer's statement contradicted the appeal notes as they have no
mention of the Appeal Officer training the other night staff - instead
those notes show the Appeal Officer didn't know if the other night staff
had been trained.
Conveniently at tribunal,
14 months after the Claimant was dismissed, these two officers suddenly
remembered that they trained the other night staff. Convenient because
the Claimant was no longer in a position to verify the training or
gather evidence to refute the training. During
the disciplinary process, when the Claimant was in such a position, neither of the officers mentioned that they had trained
the night staff.
In Judge Horne's reasons for his
decision he overlooked that the
Respondent had changed accusations part way through a disciplinary
hearing, overlooked that the Respondent had not informed the Claimant of
the new accusations prior to the disciplinary hearing, overlooked that
staff training had never been investigated or reviewed, overlooked that
both the Disciplinary and Appeal Officers tribunal statements
contradicted their own statements at disciplinary stage, and Judge Horne simply
accepted the Respondent tribunal statements regarding night staff
training as being true, despite no supporting evidence such as staff
The notes also show the
Disciplinary Officer asked the Claimant why he had not stayed over
himself to cover the shift. The Claimant stated that the Respondent had
previously refused to pay him for overtime which they had asked him to
do, therefore he found an alternative solution which didn't involve him
doing overtime. The Disciplinary Officer was already
aware of this as he was the General Manager and the one who refused to
pay the overtime; in response he stated that if the Claimant had
previously done a full shift then he would have been paid overtime -
however that was in breach of the Claimant's employment contract which stated
overtime would be paid for any
hours worked; there was no mention of having to work a full shift
in order for overtime to be paid.
In Judge Horne's reasons for his
decision he was
quick to find a section in the Claimant's employment contract which
supported the Respondent with regard to overtime; Judge Horne stated
"The statement of terms provided,
amongst other things, that the claimant would be required to work
additional hours when authorised and as necessitated by the needs of the
The employment contract may well have
stated the Claimant would be required to work additional hours, but it
also stated the Claimant would be paid for those additional hours.
Judge Horne conveniently ignored
the section which stated the Claimant would be paid by the hour for any
overtime done, and conveniently ignored the written admission from the
Respondent stating they previously refused to pay the Claimant overtime
after they had asked him to work overtime.
Judge Horne read the notes from the disciplinary process,
heard the Respondent's tribunal argument, and was aware the reason for
the insufficiency was not clear. Was it the lack of a manager on site or
was it a staff training issue? Only on reading out his decision, after the tribunal was
heard, did Judge Horne himself deem the reason for the
insufficiency to be staff training; more specifically whether or not
staff were trained in enhanced fire safety.
The reason for
the 'insufficiency' had only now been defined, 14 months after the
dismissal - this means at disciplinary stage the reason for the
insufficiency had not been clearly explained to the Claimant because the
Respondent wasn't sure of the reason themselves.
Judge Horne was fully aware that,
although 'staff training' was touched upon
during the disciplinary process, it was never investigated, reviewed or resolved.
The Claimant was not given a fair
opportunity to meet the argument regarding 'staff training' as he was not told beforehand that
it would be an issue at the disciplinary hearing; he was
only told the issue was the lack of a manager on site. Therefore he had
not gathered evidence regarding 'staff training' or prepared at all to defend against allegations relating to 'staff training'.
The respondent ambushed the disciplinary
hearing by throwing in the issue of 'staff training' without warning,
then failed to resolve the issue.
The Claimant maintained throughout disciplinary and tribunal proceedings
that he was not trained in enhanced fire safety and the Respondent
regularly left him on his own in charge of the hotel. A dismissal on
those grounds would not be fair as it would be wrong for an employer to
dismiss an employee for doing something which they themselves do i.e.
leave staff in charge without the required training.
disciplinary hearing took place in the hotel, next door to the room
which held all staff training records. You would have expected the
Claimant's training records to have been present during the hearing in
order to verify the Claimant's training; but they were not. Failing
that, it would have been a simple matter for the Disciplinary Officer to
pause the process and get the training records; but he did not. At very
least, you would expect the disciplinary Officer to have reviewed the
Claimant's training records in preparation for the process; he did not.
The Disciplinary Officer instead chose to
make assumptions about the Claimant's training; assumptions
which at tribunal Judge Horne characterised as 'beliefs' and
then treated as 'reasonable beliefs' without any reasonable
grounds being disclosed to back them up.
relevant facts at tribunal were as follows:
The Respondent then changed the allegation
against the Claimant, without any prior warning, during the disciplinary
hearing; the allegation was now that the cover staff were insufficient
because they were not trained.
Respondent's view on training was, if an employee had not done enhanced
fire safety training, they would not know how to 'organise a fire
evacuation'. The respondent did not waver on that view throughout
Health & Safety briefs, risk assessments, policies or procedures were
disclosed or referred to at disciplinary or tribunal to confirm guests
would actually be put at risk if staff were not trained in
enhanced fire safety. The perceived risk was simply speculation from the
Respondent without any evidence to back it up.
Respondent’s argument was that the staff left in charge by the Claimant
had not done the enhance fire safety training and therefore did not know
how to 'organise a fire evacuation'.
However, the legal requirement for fire safety training did not include
how to do that; if it did, all staff would know how to do that because they
had all done the legally required training.
Therefore, it was not a legal requirement for staff to know how to
'organise a fire evacuation', which should have greatly reduced the severity of
the allegation and sanction. The
only legal requirement was that staff were trained to know what to do in
a fire emergency; a requirement which was met by the staff left on site
by the Claimant.
It was not a requirement of the previous owners, or of the Respondent
themselves, to have staff on site with enhanced fire safety training; that requirement was apparently from the franchise agreement which the
Respondent signed up to a few months after taking over the hotel.
Therefore, it was simply an additional measure that one brand of hotels
put in place which other brands did not.
Had this same situation occurred prior to the
franchise agreement, there would have been no issue with leaving staff
in charge who had not done enhanced fire safety training.
an unresolved issue as to whether the Claimant had been informed of the
new franchise procedures.
If, as the Respondent claimed, not having staff on site who had done
enhanced fire safety training was a risk to fire safety; then that was a
new risk under the new regime which was not present under the previous
owners and, as such, the Respondent had a legal requirement to inform
the Claimant of any new fire risks.
However, Judge Horne
stated he saw
no need to resolve that issue.
The Claimant put to the Appeal Officer, at appeal stage, that his training
records had not been reviewed for verification, and that the
Disciplinary Officer was simply making assumptions about his training.
One Respondent witness, namely the Appeal Officer, stated as fact while
under oath that the Claimant had not done the enhanced fire safety
revelation which meant the Claimant himself had the same level of fire
safety training as the staff he left on site.
the way through the tribunal a pivotal issue was;
had staff done enhanced fire safety training? The Respondent could only
supply verbal evidence in support that enhanced training was required,
that the cover staff had not done such
training, and that the Claimant had done such training. No
evidence was disclosed to show enhanced training was required, or to
show whether or not staff had done enhanced fire safety training, even
though a Case Management Order was in place requiring the Respondent to
disclose such documents.
breaching the Case Management Order, Judge Horne simply took the
Respondent's word over the Claimant's on the issue of enhanced fire
safety training and found in favour of the
Respondent. He said in his judgement it was reasonable of the
Disciplinary Officer to 'believe' the Claimant had done enhanced
fire safety training.
Because the Respondent failed to disclose any documentary evidence relating
to enhanced fire safety training, which they were required to do under
the case management order, they could not prove the training had taken
place or even existed. So Judge Horne simply changed the KEY issue from
one of 'actual training' done by staff, to one of the
Respondent's 'belief of
In Judge Horne's reasons for his
found in favour of the Respondent's 'belief' regarding the Claimant's
training; despite the Disciplinary Officer having no first-hand
knowledge of the Claimant's training, not reviewing the Claimant's
training records, not being informed of any such training, and despite
the Appeal Officer stating under oath that the Claimant had not done the
Judge Horne conveniently ignored that a previous 'belief' regarding staff training
held by the Respondent showed they had no idea if staff were trained or
not - they put staff on shift believing them to be trained and it turned
out they were not trained (see 'Making
False Statements' section, No.1). He also ignored that the Disciplinary
had changed his belief regarding the night staff being
managers - first he said they were managers then he said they were not.
He also ignored that the Disciplinary Officer had changed his belief
regarding who had trained the other night staff - first he said the
Claimant trained them then he said it was he who trained them. He also
ignored that the Appeal Officer changed his belief regarding the night
staff being trained - first he didn't know if they were trained then he
said it was he who trained them. Those should have cast doubt on the 'reasonableness'
of any other beliefs the Respondent held regarding staff
request for reconsideration
of Judge Horne's decision, the Claimant met
the argument regarding 'belief' of enhanced fire safety training
by quoting the statement made under oath from the Appeal Officer
– which was the Claimant had not done enhanced fire safety training.
This was a fact submitted under oath by the Appeal Officer which
meant the Appeal Officer 'believed' the Claimant had not done the
relevant training. That 'belief' also supported the Claimant’s
own statement that he had not done such training and meant the staff
left on site by the Claimant had the same level of fire safety training
as the Claimant himself. It would therefore be wrong for the Respondent
to dismiss the Claimant for doing something which they themselves do.
On meeting the argument, Judge Horne restated that the KEY issue
was not about the actual training done by staff, but was
about the Respondent’s belief of training done by staff,
and that the Respondent's 'belief' was reasonable
Respondent would need to rely on a 'belief', when they had all
the 'facts' in the form of training records, is another
The case of ‘British Home Stores Ltd v Burchell’
established that for a belief to be reasonable, it must have reasonable
Despite Judge Horne changing the goalposts, the Respondent's belief
still had to pass the 'Burchell' test. In order for Judge Horne to find
the Respondent’s belief reasonable, he would have to know what the
reasonable grounds were; he could not make such a finding otherwise.
Judge Horne had changed the goalposts with regard to staff training, but
he did not disclose the reasonable grounds that made the Respondent’s
Several requests have been made to Judge Horne for him to disclose those
grounds, but each request has been ignored.
Judge Horne's continued refusal to disclose those grounds can only infer
that the Respondent had no reasonable grounds for such a 'belief'.
By changing the goalposts and accepting the Respondent's 'belief'
on the KEY issue as reasonable, despite there being no reasonable
grounds for such a 'belief', Judge Horne aided the Respondent's
case because he removed an obstacle which made the dismissal unfair.
relation to the Appeal Officer stating under oath
that the Claimant had not done enhanced fire safety training, Judge
Horne further stated the Appeal Officer
'did not say that he believed the claimant to be untrained in organising
fire evacuations and it would have been surprising if he had. The
claimant himself never suggested that he did not know how to organise a
An Employment Tribunal is supposed
to make its decision on the evidence put before it. Judge Horne, by his
own admission, is now taking into account his own speculation based on
what the Respondent or Claimant didn't state or put to him!
That further statement from Judge Horne was in direct conflict with the
view held by the Respondent
throughout the tribunal, which was - if an employee had not done
enhanced fire safety training, they would not know how to 'organise a
fire evacuation'. That was the Respondent's argument as to why
the three staff left on site by the Claimant were 'insufficient'; they
had not done the enhanced fire safety training.
The Appeal Officer had never been asked if he believed the Claimant to
be untrained in organising fire evacuations. Judge Horne therefore
that the absence of a statement stating the Claimant was untrained in
organising fire evacuations means the Appeal Officer
believed that the Claimant was trained.
That is an unreasonable and ignorant view to take.
The Appeal Officer stated the Claimant had not done enhanced fire safety
training which, by definition, means the Claimant was untrained in all
parts of the
enhanced fire safety training. How to 'organise a fire evacuation' was
allegedly part of the enhanced fire safety training, therefore the Appeal Officer did not need to specify
the Claimant was untrained in that particular part because he had
already stated the Claimant had not done the training. That was enough to indicate the Appeal Officer believed the Claimant
was untrained to organise a fire evacuation because
the Respondent's view throughout the tribunal was - if an employee
had not done enhanced fire safety training, they would not know how to
'organise a fire evacuation'.
The Claimant was never asked if he knew how to organise a fire
evacuation but, yet again, Judge Horne implied that the lack of the
Claimant suggesting he did not know how to organise a fire evacuation
means that he did know.
The Claimant maintained he had not done the
enhanced fire safety training which, by definition of not doing the
training, meant he was untrained in all parts. The mere fact the Claimant
maintained he had not done the enhanced training would suggest he didn't
know how to organise a fire evacuation because, the Respondent's view throughout the tribunal was - if an
employee had not done enhanced fire safety training, they would not know
how to 'organise a fire evacuation'.
By making this further statement, Judge Horne has substituted his own view
in place of the Respondent's view - something he was not allowed to do.
And why would it have been
surprising to Judge Horne if the Appeal Officer had said
he believed the
claimant to be untrained in organising fire evacuations?
Did Judge Horne know the Appeal Officer well enough
to come to such a conclusion? It couldn't have been that because, if
Judge Horne knew this person so well, he would have to recuse himself
from hearing the tribunal as the Appeal Officer was also joint owner of
the company being accused of unfair dismissal.
Could it have been because no Appeal Officer would
say that statement as it would damage their case? This is more likely
and if this is the reason, then the absence of any such statement does
not signify the opposite, as Judge Horne would have us believe.
in relation to the Appeal Officer stating under oath
that the Claimant had not done enhanced fire safety training;
Judge Horne twisted the meaning of that statement to favour the
Respondent by saying the Appeal Officer meant the Claimant had done some
enhanced training, just not the enhanced training done by the other night
That is not what the Appeal Officer said!
Had the Appeal Officer said the Claimant had not finished the enhanced
training, or had only done some of the enhanced training, then Judge
Horne could be forgiven for his statement. But
the Appeal Officer stated as fact that the the other Night staff were
better trained than the Claimant because the Claimant had not done the
According to the Respondent,
enhanced training was required in order for staff to be left on their
own. Even if we take Judge Horne's view that the Claimant had done some
of the enhanced training, that alone means the Claimant had not
completed the enhanced training because he had not done the required
parts which the other Night staff had done. This means the Claimant
himself was still not sufficiently trained to be left on his own.
Judge Horne conveniently twisted
this issue to favour the Respondent.
By twisting the meaning of the Appeal Officer’s statement, Judge Horne
deliberately aided the Respondent.