Judge Horne took into account verbal evidence which was uncorroborated and previously undisclosed

 

After changing the goalposts, Judge Horne stated the Appeal Officer's statement 'had to be seen in the context of the evidence of the other witnesses'.

 

He went on to say the Investigation Officer's verbal evidence at tribunal was 'that the claimant had done the enhanced fire safety training' and, the Disciplinary Officer's verbal evidence at tribunal was 'that he believed that every GSM knew how to organise a fire evacuation, but that the three cover staff had not been trained in how to do it'.

 

Rather than Judge Horne separating the facts and information into what each person knew at the time they made their respective decisions, he instead lumped everything into one pot as if all three witnesses knew all the information held by the other witnesses. Judge Horne then included the Investigation Officer's verbal evidence which nobody knew about because it had never been disclosed at any time during the disciplinary process and had never been corroborated. This verbal evidence then made it possible for Judge Horne to find the Respondent’s ‘belief’ during the disciplinary process, regarding enhanced fire safety training, as reasonable.

 

  

 

The relevant facts at tribunal were as follows:

 

  • The Respondent simply referred to the Claimant as a GSM from October 2014 and gave him a contract with a matching job title. No GSM job interview took place to determine the Claimant’s suitability for the position, no GSM induction took place to inform the Claimant of procedures and his responsibilities, and No GSM training records were ever disclosed to show that the Claimant had done GSM training or that GSM training was ongoing.

 

  • No beliefs, or other information relating to the Claimant doing enhanced fire safety training, were documented during the investigation, disciplinary or appeal hearings.

 

  • The three Respondent witnesses never approached each other to ask questions during the entire disciplinary process therefore, did not disclose to each other any beliefs or information relating to the Claimant doing enhanced fire safety training which they may have held.

 

  • Despite a Case Management Order for disclosure off all relevant material, the Respondent did not disclose any training records, training certificates, training attendance records or any other documentation relating to the Claimant taking part in Enhanced Fire Safety Training.

 

  • When the Claimant was dismissed, the Disciplinary Officer did not know as fact the Claimant had done enhanced fire safety training; he simply made a guess/assumption without any reasonable grounds to support his guess/assumption.

 

  • When the Appeal Officer upheld the dismissal, he believed the Claimant had not done the 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.

 

   

 

Witness 1 – The Investigation Officer:

He never documented or disclosed to anyone, during the entire disciplinary process, any information relating to the Claimant doing enhanced fire safety training. Instead, he waited 14 months until the Tribunal hearing itself before verbally disclosing that he personally trained the Claimant in enhanced fire safety (the Claimant does not recall him disclosing that information at tribunal but Judge Horne said he did). The Investigation Officer did not back up his statement, by disclosing enhanced fire safety training records at the tribunal, despite a case management order for disclosure of such records.

  

Viewing the Investigation Officer’s evidence in context with the statement shows: when the Appeal Officer upheld the dismissal, he believed the Claimant had not done enhanced fire safety training. The Investigation Officer had not disclosed, or documented, any information at the time to change that belief.

 

New uncorroborated verbal evidence, which the Investigation Officer only disclosed at tribunal 14 months after the Claimant was dismissed, had no influence on what the Appeal Officer believed at the time of upholding the dismissal because he was not made aware of it at the time of upholding the dismissal.

 

 

  

Witness 2 – The Disciplinary Officer:

At disciplinary stage he made an assumption that the Claimant was trained to organise a fire evacuation. His assumption was not based on first-hand knowledge because he had no first-hand knowledge of the Claimant doing any enhanced fire safety training. His assumption was not based on the Claimant's training records because he did not review the Claimant’s training records. His assumption was not based on information contained within the investigation notes because there was nothing documented in those notes stating the Claimant had done enhanced fire safety training or could organise a fire evacuation. His assumption was not based on information obtained directly from the Investigation Officer because he did not approach the Investigation Officer to question him about the Claimant’s training. It seems his assumption was based on nothing.

 

After he put the assumption to the Claimant, it was put squarely back to the Disciplinary Officer that the Claimant had only done the basic mandatory fire safety training which all staff had done. After being informed the Claimant had only done basic fire safety training, the Disciplinary Officer saw no need for further investigation and  did not obtain any information or training records to refute the Claimant's statement. He too did not disclose any enhanced fire safety training records at the tribunal, despite a case management order for disclosure of such records.

   

Viewing the Disciplinary Officer’s evidence in context with the statement shows: when the Appeal Officer upheld the dismissal, he believed the Claimant had not done enhanced fire safety training. The Disciplinary Officer had not disclosed or documented any information at the time to change that belief.

 

What the Disciplinary Officer believed at tribunal, 14 months after the Claimant was dismissed, had no influence on what the Appeal Officer believed at the time of upholding the dismissal because he was not made aware of any such 'beliefs' at the time of upholding the dismissal.

 

What the Disciplinary Officer believed at tribunal, about GSMs, was not reasonable in regard to the Claimant because the Respondent had not followed a selection process to determine suitability when appointing the Claimant as a GSM; by their own admission they simply referred to the Claimant as a GSM from October 2014.

 

 

  

Witness 3 – The Appeal Officer:

He stated under oath that other night staff, in lower job positions than the Claimant, were better trained in fire safety than the Claimant. He re-enforced this point by further stating the Claimant had not done the enhanced fire safety training.

 

The Appeal Officer was not aware of any ‘belief’, relating to enhanced fire safety training, held by the Investigation Officer or the Disciplinary Officer as none were documented in the investigation or disciplinary notes and, the Appeal Officer had not approached either of them to question them about the Claimant’s training.

 

The Appeal Officer was aware, from the disciplinary notes, it had been put squarely to the Disciplinary Officer that the Claimant had only done the basic mandatory fire safety training. The Appeal Officer was also aware that no investigation into the Claimant’s training had taken place therefore, no evidence was gathered to support the Disciplinary Officer's assumptions or refute the Claimant's statement.

 

The Appeal Officer was further aware that no enhanced fire safety training records for the Claimant were disclosed at the disciplinary hearing. The Appeal Officer himself failed to disclose any enhanced fire safety training records to the Tribunal, despite a case management order for such material, but that was to be expected as the Appeal Officer ‘believed’ the Claimant had not done such training.

  

In viewing the Appeal Officer’s statement in the context of the evidence of the other witnesses, as suggested by Judge Horne, we find that when the Appeal Officer upheld the dismissal, he believed the Claimant had not done enhanced fire safety training and neither the Investigation Officer or Disciplinary Officer had disclosed any information to change that belief.

 

The Claimant was dismissed because he left staff on site who had not done enhanced fire safety training; yet the dismissal was upheld by the Appeal Officer in the knowledge that the Claimant himself had not done enhanced fire safety training and was regularly left alone on site.

 

 

 

At Tribunal the Respondent witnesses could not agree amongst themselves regarding the Claimant’s training; the first Respondent witness apparently stated 'the Claimant had done the enhanced fire safety training' (which apparently included how to organise fire evacuations) but did not disclose any relevant training records to support this, the second Respondent witness didn’t know about the Claimant’s training but stated he 'believed every GSM knew how to organise a fire evacuation' but gave no grounds for such a belief, and the third Respondent witness stated 'the Claimant had not done the enhanced fire safety training'. At very least this inconsistency should have cast doubt on the Claimant’s training and caused Judge Horne to wonder why no material evidence in support of Enhanced Fire Safety Training had been disclosed to the tribunal.

   

 

 

However, Judge Horne simply ignored that each Respondent witness had a different 'belief' regarding the Claimant's training, ignored that the Respondent had breached the Case management Order by not disclosing the relevant training records and, when it came to putting the Appeal Officer's statement in the context of the evidence of the other witnesses, Judge Horne included the Investigation Officer’s undisclosed and uncorroborated verbal evidence and placed the most weight on it. This then allowed Judge Horne to find it reasonable for the Respondent to ‘believe’ that the Claimant would know how to organise a fire evacuation.

 

 

 

By Including the Investigation Officer’s undisclosed and uncorroborated verbal evidence into the context, Judge Horne gave the Respondent ‘reasonable grounds’ for their 'belief' where none existed.