Judge Horne changed the goalposts on the KEY issue

 

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.

 

Within 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. The comment, although private, fell into the scope of 'conduct' as the company had a 'social networking' policy albeit just one short paragraph. The comment was silly, not damaging to the company, but the Respondent 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.

 

Three 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; 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'? The Respondent chose 'conduct'.

 

The Final 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 time the 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).

 

 

 

The notes from the entire disciplinary process 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'.

 

The 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 on site.

 

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.

 

The Claimant 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.

 

Despite not being informed beforehand of the new allegations regarding staff training, the 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.

 

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 a position to verify staff training, neither of the officers mentioned that they had trained the night staff.

 

Judge Horne 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 both the Disciplinary and Appeal Officers tribunal statements contradicted their own statements at disciplinary stage, and he simply accepted the Respondent tribunal statements regarding night staff training as being true, despite no supporting evidence such as staff training records.

 

 

At no 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. The Disciplinary Officer was instead relying on the night staff being 'managers' but, when it was established the night staff were not 'managers' the Disciplinary Officer then relied on them being trained. He never once relied on 'managers' sleeping in - that was something which had never been investigated or established.

 

The 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.

  

 

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.

 

 

 

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 in reading 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.

 

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.

 

The 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'.

 

 

  

The relevant facts at tribunal were as follows:

 

  • The original allegation against the Claimant was that the cover staff were insufficient because they were not managers.

 

  • The Respondent 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.

 

  • All staff had done mandatory fire safety training to the legal requirement and knew what to do in an emergency or evacuation situation. Judge Horne himself stated ‘As a matter of common sense I would accept that all hotel staff should know how to follow a fire evacuation’.

 

  • The 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 the tribunal.

 

  • No supporting 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.

 

  • The 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. This meant any perceived risk was now within legal parameters.

 

  • It was not a requirement of the Claimant’s previous contract, or new contract under the Respondent, for him to do enhanced fire safety training.

 

  • It was not a Respondent Health & Safety policy or procedure for staff to do enhanced fire safety training. Therefore the Claimant had not breached Health & Safety policy or procedure by leaving these staff in charge;  which again should have greatly reduced the severity of the allegation and sanction.

 

  • The Disciplinary Officer had no first-hand knowledge of the Claimant doing enhanced fire safety training.

 

  • The Disciplinary Officer had not been informed by anyone that the Claimant had done enhanced fire safety training.

 

  • The Disciplinary Officer had not reviewed the Claimant's training records.

 

  • The Disciplinary Officer failed to resolved the issue of staff training; an issue which he himself raised.

 

  • 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.

 

  • There was 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.

 

  • Before the Respondent took over the hotel, the employee who was left in charge by the Claimant had previously been in a Supervisory position and the Claimant stated they had both done the same training. The Respondent did not review training records to verify this before dismissing the Claimant.

 

  • The Respondent did not carry out a risk assessment in order to determine the hotel had been put at risk by not having staff on site who were trained in enhanced fire safety; the Respondent simply stated the hotel was put at risk - despite the legally required training being met by the staff left on site and despite any perceived risk being within legal parameters.

 

  • The Investigation Officer had not reviewed the Claimant’s training records as part of the investigation. Nor did he document or disclose to the Disciplinary and Appeal Officers any knowledge he may have held regarding the Claimant being trained in enhanced fire safety.

 

  • The Disciplinary Officer simply made assumptions about the Claimant's training in order to dismiss him.

 

  • The Claimant maintained he had not done enhanced fire safety training and even 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.

 

  • The only fire safety training records disclosed to the tribunal were the ones relating to the mandatory training which all staff had done and which did not show any enhanced fire safety training.

 

  • No training records were disclosed at any stage, including tribunal, to show the Claimant had done enhanced fire safety training.

 

  • The Claimant had attempted to obtain all his personal data from the Respondent (subject access request), however the Respondent was being obstructive on specific data relating to the Claimant's disciplinary hearings.

 

  • One Respondent witness, namely the Appeal Officer, stated as fact while under oath that the Claimant had not done the enhanced fire safety training - a revelation which meant the Claimant himself had the same level of fire safety training as the staff he left on site.

 

  • The Respondent had previously refused to pay any overtime to the Claimant after they had him working overtime on several occasions (which was the overriding reason the Claimant chose to find an alternative solution rather than stay over himself after his shift had ended).

 

 

 

All 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 of the cover staff not doing such training and to support that the Claimant had done such training. No material evidence was disclosed 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 material.

 

Despite 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 material 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 a 'belief of training' held by the Respondent.

 

Judge Horne then 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 training.

 

Judge Horne conveniently ignored that a previous 'belief' regarding staff training held by the Respondent was incorrect and unreliable (see 'Making False Statements' section, No.1). He also ignored that the Respondent had instantly changed his belief regarding the night staff being managers. Those should have cast doubt on the 'reasonableness' of any other beliefs the Respondent held regarding staff or their training to which they had not provided any supporting documentary evidence.

  

 

 

In a 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 (why the Respondent would need to rely on a 'belief', when they had all the 'facts' in the form of training records, is another unanswered question).

 

 

  

The case of ‘British Home Stores Ltd v Burchell’ established that for a belief to be reasonable, it must have reasonable grounds. 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 belief reasonable. 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.

 

 

 

In 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 fire evacuation'.

 

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, yet Judge Horne is implying that the absence of such a statement from the Appeal Officer means he believed that the Claimant was trained in organising fire evacuations. 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.

 

 

 

Also 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 staff.

 

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 enhanced training.

 

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 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.