Judge Horne accepted the investigation was sufficient despite the KEY issue not being investigated

 

The case of 'British Home Stores Ltd v Burchell' requires an employer to show that he had a genuine belief in the misconduct of the employee; and thereafter for the Tribunal to consider whether that belief was held on reasonable grounds and was not formed until an investigation had been carried out that was reasonable in all the circumstances of the case.

 

 

In the case of 'Coventry University v Mian' the the Court of Appeal said "The investigation should involve searching for relevant contemporaneous evidence and speaking to each relevant witness before putting the allegations to the individual who is the subject of the allegation. The more serious the allegation, the more thorough the investigation needs to be. The employee needs to have a clear understanding of what the allegations are and the investigator should be careful to ensure that any issues that arise as a result of an interview are followed up before a decision on the pursuit of disciplinary proceedings is made"

 

 

 

An investigation (of a fashion) was conducted; but was it a reasonable investigation for the purpose of the disciplinary hearing?

 

A reasonable investigation should be based on the conduct in question and focus on the reasons for the Respondent’s belief in the Claimant’s guilt.

 

In this case the conduct in question was leaving insufficient management cover’ in place.

 

A reasonable investigation would therefore establish that the cover staff left in place were insufficient.

 

The 'insufficiency' of the cover staff was never investigated or established.

 

The reason for the belief of guilt was twofold; the cover left in place were not trained to be left on their own and, the Claimant himself was trained to be left on his own.

 

A reasonable investigation would therefore look to see if the cover staff and the Claimant had undertaken the required training.

 

Staff training was never investigated or established.

 

The Investigation Officer was only tasked with finding out why the Claimant left the hotel without a manager; nothing more. The Claimant gave his reasons which were; the hotel had been left without a manager previously such as, but not limited to, during the nights when the Claimant was off work. Therefore the Claimant saw no problem with leaving the hotel without a manager again.

 

That's why the investigation only lasted 10 minutes; it wasn't looking to establish 'insufficiency', it didn't look to see if the cover staff and the Claimant had undertaken the required training, it didn't involve searching for relevant contemporaneous evidence and speaking to each relevant witness. The evidence from this investigation was not sufficient to justify proceeding to a disciplinary hearing because it had not investigated the allegation or established the relevant facts.

 

As the investigation was not based on the conduct in question, or focused on the reasons for the belief of guilt, it could not have been a reasonable investigation.

 

 

 

During the investigation, the Investigation Officer used his own knowledge and listed the names of people who had slept over during the night when the Claimant was off work. The list consisted of the Investigation Officer himself, the Disciplinary Officer, one GSM and a GSA (Guest Service Assistant – a ‘non-management’ position but at tribunal the Respondent stated this particular GSA was in fact a trainee GSM. The Claimant, as management, had never been informed this person was a trainee GSM, this person was not listed as a trainee GSM on the staff rota, and no evidence was disclosed at tribunal to support this person was a trainee GSM).

 

The Claimant challenged that knowledge by stating the people listed had not always slept over; how could they have, they all started work at the hotel after June 2014 so could not possibly have slept over in the years prior to then.

 

The issue of 'sleep-in' managers arose as a result of the interview and should have been followed up before a decision on the pursuit of disciplinary proceedings was made. The Investigation Officer made no attempt to verify the accuracy of his own knowledge, or that of the Claimant's.

 

Even if the Investigation Officer's own knowledge was correct, it would only account for the last six months out of almost six years.

 

Judge Horne himself addressed this issue in his decision at tribunal by stating it was reasonable for the Investigation Officer to believe nights were always covered by a sleep-in manager due to the amount of nights he and the Disciplinary Officer slept in the hotel.

 

  • If it was reasonable, then it could only be reasonable in relation to the time the Investigation Officer actually worked at the hotel; which was from August 2014 onwards.

 

  • In stating it was reasonable, Judge Horne ignored that the Investigation Officer was not the person who made the Disciplinary decision and he had not documented or disclosed information relating to the amount of times he slept in the hotel. So how would the Disciplinary Officer have taken account of this?

 

  • Judge Horne also ignored that the Disciplinary Officer had not documented or disclosed information relating to the amount of times he slept in the hotel. As nothing was documented or disclosed, how would the Appeal Officer have taken account of the amount of times the Investigation and Disciplinary Officers had slept in?

 

  • Judge Horne also ignored the Disciplinary Officer's own statement which said 'Sometimes I work late and stay over at the hotel'. 'Sometimes' means 'from time to time', 'now and then', 'once in a while', 'on the odd occasion' etc, it does not add up to a great deal of instances which is in direct conflict with the Investigation Officer's statement implying that the Disciplinary Officer stayed over a great deal of time. Yet Judge Horne took the Investigation Officer's uncorroborated second-hand evidence, relating to the Disciplinary Officer, over the Disciplinary Officer's own evidence about himself!

 

The issue was not followed up by the Investigation Officer, the alleged knowledge was not put to any test, or passed on to the Disciplinary and Appeal Officers. The mere fact the Investigation Officer had to rely on his own knowledge confirms the investigation itself did not establish this fact.

 

By using his own knowledge, the Investigation Officer had made himself a witness for the Respondent which in turn caused a 'conflict of interests'.

 

Judge Horne was aware that both the Investigation and Disciplinary Officers had only worked at the hotel for less than six months, he was aware that the Disciplinary Officer only 'sometimes' slept over, he was aware that the Investigation Officer's statement regarding the amount of times the Disciplinary Officer had slept over was in conflict with the Disciplinary Officer's own statement, yet Judge Horne took the Investigation Officer's ‘belief’ of sleep-in managers and applied it to all the years prior to the Officers working at the hotel and prior to the Respondent taking over the hotel; that was not a reasonable thing for Judge Horne to do.

 

 

 

At investigation stage the Claimant was only questioned about why he left the hotel without a manager. There was no allegation that the cover left in place by the Claimant was ‘insufficient’. There was no investigation to determine if the cover left in place by the Claimant was ‘insufficient’. No other members of staff were interviewed as part of the investigation; especially to find out if any of them had previous training to be left without a manager. No staff training records were reviewed as part of the investigation.

 

The Claimant admitted he did go home and gave his reasons for leaving a specific non-manager member of staff in charge. The investigation Officer did not ask for any other examples of when the hotel had been left without a manager, and nor did he look for any, he simply focused on the Night Staff example. The Claimant didn't give any other examples as he believed he only needed to show one example of the Respondent leaving the hotel without management for the allegation against him to be dropped.

 

That was the total investigation which, minus the breaks due to guest interruptions because the meeting was held in the open bar area of the hotel, lasted about 10 minutes.

 

A 10 minute investigation falls extremely short of "The more serious the allegation, the more thorough the investigation needs to be".

 

The Investigation Officer did not disclose or document any knowledge he held regarding the Claimant's training or staff training in general. He simply passed his notes on to the Disciplinary Officer and that was the end of his involvement. The Disciplinary Officer did not approach him at any time to question him about the investigation or its findings.

 

 

 

The Claimant was subsequently invited to a Disciplinary hearing with the allegation that he had left ‘insufficient management cover’ in place which had 'put the health and safety of guests and the running of the hotel at risk’.

 

At tribunal the Disciplinary Officer elaborated just a little further on this alleged risk by saying IF there was a fire the staff left in charge by the Claimant might cancel the fire alarm without properly evacuating the hotel, which would leave guests in danger.

 

However, there were no grounds for such a belief; nothing was put forward to the tribunal showing that the cover staff would cancel the fire alarm at any time during a fire evacuation. Judge Horne had read the appeal notes and was therefore aware the Respondent believed that training on the fire panel had been passed on to all staff. Yet, Judge Horne deemed it reasonable that the cover staff would ignore their fire safety training, ignore their Fire Panel training, and instead choose to cancel the fire alarm during a fire evacuation. This was despite Judge Horne accepting that all staff knew how to follow fire evacuation procedures which included not cancelling the fire alarm until given the all clear by the fire brigade.

 

 

 

The Claimant saw the disciplinary allegation as being inconsistent with the investigation because the Investigation Officer only queried why the Claimant went home leaving the hotel without a manager; insufficiency of staff was never mentioned or looked into as part of the investigation. The Claimant therefore requested to see witness statements from the staff he left on site to see if any light could be shed on the disciplinary allegation.

 

It was only at that point (ten days after the event) the Investigation Officer interviewed the employee left in charge by the Claimant. That interview lasted about 10 minutes. Total investigation time now stood at 20 minutes.

 

A 20 minute investigation falls extremely short of "The more serious the allegation, the more thorough the investigation needs to be".

 

The new witness statement showed the Investigation Officer was only concerned with the fact the Claimant went home and left the site without a manager. The witness confirmed that the Claimant left the hotel without a manager.

 

The witness was not asked about their own training, in particular if they had done enhanced fire safety training with the Respondent or while they were in a Supervisory role with the previous owners. The witness was not asked what they would do if the fire alarm went off; just to clarify whether or not they would evacuate guests from the building or cancel the fire alarm. Insufficiency of this employee was not mentioned or looked into during this interview.

 

The witness was not asked if he was aware of anytime the hotel was without a manager on site; which this witness would have knowledge of because when the Respondent took over the hotel this witness started work over an hour before the regular shift change occurred at 7am. So he would know if a manager had slept over or if one had simply arrived for 7am

 

The remaining staff that were left on site by the Claimant were not interviewed, especially about their training with the Respondent or the previous owners. Insufficiency of these employees was not looked into.

 

 

 

The Claimant also asked for a copy of company procedure which documented the procedures to follow with regard to a manager phoning in sick and, which documented the hotel must have management on site at all times.

 

The Respondent confirmed there were no such procedures in place for the Claimant to follow. The lack of procedures meant there was no guidance given to the Claimant on this issue.

 

As there were no procedures to follow, the Claimant used his own experience and chose to leave a person in charge who had his full confidence, who had previously been in a Supervisory position but, was not a manager at that present time.

 

 

 

The Claimant stated at the disciplinary appeal hearing 'I knowingly left the hotel with no management on site, a point which I have never denied or argued. However, my experience with this company, and the previous company, has at no point indicated that this would be insufficient'.

 

Judge Horne himself stated in his judgement ‘It was not reasonable, in my view, to conclude that the mere fact that there was nobody with the word "manager" in their job title on the premises meant that the cover was insufficient’.

 

The insufficiency of cover was due to something else and Judge Horne later deemed it to be ‘staff training’.

  

 

 

As the KEY issue was ‘training the Respondent had to show as fact, or as a reasonable belief, the three staff left in place by the Claimant were insufficiently trained to be left on their own; but by that same requirement the Respondent also had to show as fact, or as a reasonable belief, the Claimant himself was sufficiently trained because they regularly left him on his own.

 

From the Respondent and Claimant statements, Judge Horne was aware the Claimant worked permanent night shift and there was hardly any interaction between him and the Disciplinary Officer who worked day shifts, and no interaction between him and the Appeal Officer who worked at a different property. This meant both the Disciplinary and Appeal Officers had very little first-hand knowledge of the Claimant and a belief based on first-hand knowledge would not be reasonable. As such they were reliant on information coming from the investigation notes and training records.

 

 

 

A disciplinary outcome is supposed to be based on evidence from the Claimant and from the investigation. The investigation notes show the Claimant confirmed he left the hotel without a manager. That is all the investigation established. As Judge Horne stated himself, the lack of a manager did not make the cover 'insufficient'.

 

The investigation notes also show that no allegations, regarding the staff left on site being 'insufficient', were put to the Claimant. They further show there was no investigation or review of the Claimant’s training records, or a review into the training of the staff left in charge, and no assessment was conducted to determine what, if any, risk was caused by the Claimant’s actions.

 

As no facts were established at investigation stage regarding the insufficiency of the cover staff, or the sufficiency of the Claimant, a belief of insufficiency/sufficiency based on the investigation notes would not be reasonable.

 

At tribunal stage the Investigation Officer stated he saw no need for further investigation because the Claimant had admitted to the 'allegation'. But no allegation had been made at that stage, it was simply an investigation to find out why the Claimant had left the hotel without a manager, and the Claimant gave his reasons for leaving the hotel without a manager. Insufficiency of staff was not mentioned or looked into as part of the investigation.

 

 

 

The disciplinary notes show the Claimant confirmed leaving the hotel without a manager. Judge Horne had stated himself, the lack of a manager did not make the cover 'insufficient'.

 

The disciplinary notes do not show the Claimant making any admission to the allegations stated in the disciplinary invite letter - they show the Claimant vigorously defending against those allegations.

 

They also show that no assessment was conducted to determine what, if any, risk was caused by the Claimant’s actions. There was no evidence to back up the Respondent's allegation that the staff left on site by the Claimant were 'insufficient'. Furthermore, there was no evidence to support the Respondent's view that the Claimant himself was sufficient to be left alone.

 

No evidence was submitted, or facts established, at disciplinary stage regarding the insufficiency of the cover staff or sufficiency of the Claimant; therefore a belief of insufficiency/sufficiency would again not be reasonable.

 

The disciplinary notes also show the Claimant put mitigation forward stating the previous owners did not have a manager on site all the time; that was the standard the Claimant applied under the Respondent because the Respondent had not told him otherwise. The Disciplinary Officer had already confirmed there were no procedures in place for the Claimant to follow; which meant they had not given the Claimant any guidance. If it was found that managers, or staff trained to carry out those tasks, were not required on site all the time by the previous owners, this would have tended to support the Claimant's view that he was applying the same standard in 2015 which had always been applied.

 

The issue was not followed up because the Disciplinary Officer failed to make enquiries into the standards of the previous owners, in particular if a manager had to be on site all the time or not, and therefore had nothing to refute the Claimant's mitigation.

 

In this instance Judge Horne allowed the Disciplinary Officer to use his own alleged knowledge with regard to the standards of the previous owners; however this 'knowledge' was not tested for accuracy and, was not formed as a result of the investigation or as a result of disclosed information. A disciplinary is supposed to be decided on the evidence presented to the Disciplinary Officer; by allowing the Disciplinary Officer to simply use his own alleged knowledge, Judge Horne removed the need for investigations to establish facts.

 

A belief without first-hand knowledge and no disclosed information could not have been a reasonable belief.

 

 

 

The disciplinary notes also show the Claimant put mitigation forward stating the previous owners had no such requirement regarding enhanced fire safety training; that was the standard the Claimant applied under the Respondent because the Respondent had not told him otherwise.  If it was found that enhanced fire safety training was not required by the previous owners in order to be left in charge, this again would have tended to support the Claimant's view that he was applying the same standard in 2015 which had always been applied.

 

The issue was not followed up because the Disciplinary Officer failed to make enquiries into staff training under the previous owners, in particular if staff were required to have enhanced fire safety training in order to be left in charge, and therefore had nothing to refute the Claimant's mitigation.

 

Again, Judge Horne allowed the Disciplinary Officer to use his own alleged knowledge with regard to staff training under the previous owners; however this 'knowledge' was not tested for accuracy and, was not formed as a result of the investigation or as a result of disclosed information. Again, by allowing the Disciplinary Officer to simply use his own alleged knowledge, Judge Horne once more removed the need for investigations to establish facts.

 

Again, a belief without first-hand knowledge and no disclosed information could not have been a reasonable belief.

 

 

 

The disciplinary notes also show the Claimant put mitigation forward that he himself had not done enhanced fire safety training. If it was found that the Claimant had not done enhanced fire safety training under the previous owners or with the Respondent, this would once more have tended to support the Claimant's view that he was applying the same standard in 2015 which had always been applied.

 

The issue was not followed up because the Disciplinary Officer failed to make enquiries into the Claimant's training, in particular if he had done enhanced fire safety training with either the previous owners or the Respondent, and therefore had nothing to refute the Claimant's mitigation.

 

Once more, Judge Horne allowed the Disciplinary Officer to use his own alleged knowledge with regard to the Claimant's training; however this 'knowledge' was again not tested for accuracy and, was not formed as a result of the investigation or as a result of disclosed information. Once again, by allowing the Disciplinary Officer to simply use his own alleged knowledge, Judge Horne again removed the need for investigations to establish facts.

 

And again, a belief without first-hand knowledge and no disclosed information could not have been a reasonable belief.

 

 

 

The disciplinary notes also show the Claimant made an allegation that he was being treated differently to other staff. It had been alleged that the Claimant’s actions had put guest health & safety at risk, which in turn warranted an immediate investigation and a disciplinary hearing. During the 8 day recess, between part 1 and part 2 of the disciplinary hearing, someone had chained and padlocked a guest fire exit shut for two days while the Claimant was off work. The Claimant spotted this when he returned to work, knew this was a serious risk to health & safety, and reported it to the General Manager (who was also the Disciplinary Officer). The Claimant’s quick thinking led to the General Manager ordering the immediate removal of the chain and padlock.

 

As no one was investigated for putting guest health & safety at risk by chaining and padlocking the fire exit, the Claimant raised it at the reconvened disciplinary hearing as an example of how he was being treated differently to other staff when it came to issues of health & safety; the Claimant was investigated the same day regarding the allegation against him.

 

If it was found that the Claimant was being treated differently, the Disciplinary Officer could have corrected that at disciplinary stage. However, the issue was not followed up because the Disciplinary Officer chose not to make enquiries into the Claimant being treated differently when it came to allegations of health & safety, and therefore had nothing to refute the Claimant's allegation.

 

It was only at tribunal stage the Disciplinary Officer disclosed that he himself was the person who chained and padlocked the fire exit in question – that revelation tells us why he did not investigate the Claimant's allegation and also corroborated that the Claimant was indeed being treated differently when it came to allegations of health & safety.

 

However, despite both allegations being about putting guest Health & Safety at risk, Judge Horne stated the allegations were not truly alike because the actions leading to alleged Health & Safety risks were not the same; therefore the Claimant was not being treated differently.

 

 

 

At tribunal the Disciplinary Officer admitted to not following up on issues raised at disciplinary hearing by stating he saw no need for any investigation after his meeting with the Claimant. He further admitted to pre-judging the Claimant prior to the disciplinary hearing because he already regarded the Claimant as having essentially admitted the allegation. This pre-judgement can be seen in an email sent to the Claimant prior to the hearing in which the Disciplinary Officer stated the disciplinary hearing for the purposes of hearing mitigation.

 

The Disciplinary Officer admitted at tribunal stage that he used his own knowledge to determine the staff left on site were 'insufficient'. Use of this knowledge was not documented anywhere in the notes of the disciplinary hearing, or the disciplinary outcome letter, or passed on to the Appeal Officer. The mere fact the Disciplinary Officer had to rely on his own alleged knowledge confirms the investigation itself did not establish ‘insufficiency’.

 

Judge Horne stated 'it was reasonable' for the Disciplinary Officer to use his own knowledge prior to the disciplinary hearing to 'already have formed the view that the three people who had been left in charge could not safely have been left to run the hotel to the required standard'.

 

The Disciplinary Officer's alleged 'knowledge' in this instance was not tested for accuracy and, was not formed as a result of the investigation or as a result of disclosed information. The Disciplinary officer did not disclose or document at any stage of the disciplinary that he was using his own knowledge rather than facts established by an investigation. By allowing the Disciplinary Officer to decide essential facts using just his own alleged knowledge, Judge Horne once more removed the need for investigations to establish facts.

 

Once more, a belief without first-hand knowledge and no disclosed information could not have been a reasonable belief.

 

The Disciplinary Officer's knowledge was challenged by the Claimant during the disciplinary hearing. The Disciplinary Officer once more did not follow up on the issue and made no attempt to verify the accuracy of his own knowledge, or that of the Claimant, he simply viewed his own knowledge as being correct without putting it to any test.

 

 

 

The three people left in charge being 'insufficient' was only half of the issue; the other half was if the Claimant himself was sufficient to be left on his own. The Disciplinary Officer had no knowledge of the Claimant's training and the investigation did not address the Claimant's training.

 

There could be no reasonable belief of the Claimant's sufficiency because there was no knowledge or evidence to support such a belief.

 

The appeal notes show the Claimant confirmed leaving the hotel without a manager. Again, Judge Horne had stated himself, the lack of a manager did not make the cover 'insufficient'.

 

The appeal notes do not show the Claimant making any admission to the allegations stated in the disciplinary invite letter - they show the Claimant vigorously defending against those allegations. They also show that no investigation or review of the Claimant’s training records was ever carried out, or a review into the training of the staff left in charge, and no assessment was conducted to determine what, if any, risk was caused by the Claimant’s actions.

 

There was no evidence to back up the Respondent's allegation that the staff left on site by the Claimant were 'insufficient'. Furthermore, there was no evidence to support the Respondent's view that the Claimant himself was sufficient to be left alone.

 

There could be no reasonable belief of insufficiency/sufficiency because there was no evidence to support such a belief.

 

 

 

On reviewing the evidence available to the Disciplinary Officer, the Appeal Officer ought to have seen that the disciplinary allegations were not determined from the investigation notes because the Investigation Officer had not looked into staff training in order for a view of 'insufficiency' to be formed. This was a flaw in the investigation which the Appeal Officer could have corrected, but did not. The Disciplinary Officer subsequently admitted at tribunal stage that he used his own knowledge to determine the staff left on site were 'insufficient'; knowledge which was not documented or shared with the Appeal Officer.

 

On reviewing the disciplinary hearing notes, the Appeal Officer would have seen that no evidence relating to the 'insufficiency' of staff was disclosed to the Claimant prior to, or during, the disciplinary hearing. The Claimant was therefore not given a fair chance to meet the argument. This was a flaw in the disciplinary hearing which the Appeal Officer could have corrected, but did not.

 

Also on reviewing the disciplinary hearing notes, the Appeal Officer would have seen that the Disciplinary Officer made no attempt to verify mitigation raised by the Claimant or deal with the allegation of the Claimant being treated differently.

 

Judge Horne subsequently identified that the appeal hearing itself was not conducted as prescribed by the company disciplinary procedures; which amounted to a breach of contract.

 

 

 

At tribunal the Appeal Officer admitted to not following up on issues raised at appeal hearing by stating he saw no need for further investigation after his meeting with the Claimant. He further admitted that he too had pre-judged the Claimant because prior to the appeal hearing he also regarded the Claimant as having essentially admitted the allegation.

 

The Appeal Officer admitted at tribunal stage that he also used his own knowledge to determine the staff left on site were 'insufficient'. Use of this knowledge was not documented anywhere in the notes of the appeal hearing or appeal outcome letter. The mere fact the Appeal Officer had to rely on his own alleged knowledge confirms the investigation itself and the disciplinary hearing did not establish ‘insufficiency’.  By using his own knowledge, the Appeal Officer had also made himself a witness for the Respondent which in turn caused a further 'conflict of interests'.

 

Judge Horne stated 'it was reasonable' for the Appeal Officer to use his own knowledge prior to the appeal hearing to 'already have formed the view that the three people who had been left in charge could not safely have been left to run the hotel to the required standard'.

 

The Appeal Officer's alleged 'knowledge' was not tested for accuracy, was not formed as a result of the investigation, was not formed as a result of the disciplinary hearing, was not documented and, was not put to the Claimant at appeal stage. The Appeal officer did not document at any stage of the appeal that he was using his own knowledge rather than facts established by the investigation or by the disciplinary hearing. By allowing the Appeal Officer to decide essential facts using just his own undisclosed and undocumented knowledge, Judge Horne further removed the need for investigations to establish facts.

 

The Appeal Officer did not put his own alleged knowledge to the Claimant at the appeal hearing; therefore the Claimant was not given a fair opportunity to meet the Appeal Officer's argument. This was a flaw in the appeal process.

 

Again, the three people left in charge being 'insufficient' was only half of the issue; the other half was if the Claimant himself was sufficient to be left on his own. The Appeal Officer had some knowledge of the Claimant's training which he disclosed at tribunal by stating that the Claimant had not done specific training which staff left in charge were required to do. But again, that information did not come from the investigation which begs the question; what exactly was the point of the investigation?

 

The investigation established the Claimant went home and left non-managers in charge of the hotel; nothing more. It did not establish the facts relied on by the Disciplinary and Appeal Officers to dismiss the claimant such as staff training, sleep-in managers, procedures of the previous owners, insufficiency of the staff left in charge by the Claimant, or even risk that may have been caused by the Claimant's actions; those were things the Officers simply pulled out of thin air. However, because there was 'an investigation', that was enough for the Respondent to 'tick a box' showing they had conducted 'an investigation' so they could then move on to the disciplinary and dismiss the Claimant without any relevant facts being investigated or established.

 

 

 

Judge Horne was fully aware that the Claimant giving his reasons for leaving the hotel without a manager at investigation stage, was completely different to an admission of leaving 'insufficient' cover on site at disciplinary stage. We know Judge Horne was fully aware of this because he himself stated ‘It was not reasonable, in my view, to conclude that the mere fact that there was nobody with the word "manager" in their job title on the premises meant that the cover was insufficient’. Therefore, it was not reasonable of the Disciplinary and Appeal Officers to regard the Claimant as having ‘essentially admitted the allegation’ simply because at investigation stage the Claimant admitted to leaving the hotel without a manager.

 

Yet, Judge Horne accepted the Respondent’s view that, the Claimant's reasons at investigation stage was ‘essentially’ an admission to the disciplinary allegations. According to Judge Horne's own statement above, that was not a reasonable conclusion to make; but he still accepted that conclusion as reasonable from the Respondent.

 

 

 

Judge Horne was fully aware that the Respondent's 'belief' of misconduct was not as a result of the investigation but, by the Respondent's own admission, was a result of their own separate undisclosed knowledge. The investigation itself did not uncover the knowledge and did nothing to support the knowledge because it was not asked to; the Respondent simply took their own knowledge as being correct without putting it to any test.

 

Judge Horne was fully aware the Respondent's disciplinary procedures formed part of the Claimant's contract of employment, and that those procedures stated 'you will only be disciplined after careful investigation of the facts'. Judge Horne was also aware the KEY issue of 'training' had not been part of any investigation or enquired about, and that no material evidence was disclosed during the disciplinary process in support of the Claimant taking part in enhanced fire safety training.  Similarly, no supporting evidence was disclosed at tribunal despite a case management order for such material evidence. Therefore the facts of the KEY issue had not been carefully investigated, or investigated at all, as prescribed by the Respondent's own disciplinary procedures.

 

If the Respondent had followed their own Disciplinary Procedures, as laid out in the Claimant's contract of employment, no dismissal could have occurred. But the Respondent dismissed the Claimant contrary to their own disciplinary Procedures; which Judge Horne conveniently ignored.

 

Not investigating the KEY issue, and subsequently disciplining the Claimant, was also breach of contract because the Respondent had not investigated the facts before taking disciplinary action against the Claimant.

 

 

 

Despite the KEY issue not being investigated, and despite there being breaches of contract in relation to the disciplinary process, Judge Horne found in favour of the Respondent with regard to their handling of the disciplinary process simply because they had followed statutory dismissal and disciplinary procedure by holding an investigation, a disciplinary, and an appeal.

 

On paper the Respondent may have gone through the motions and ticked all the boxes in regard to the statutory dismissal and disciplinary procedure, but if the KEY issue of staff training was not reviewed or investigated, how could Judge Horne reasonably accept the Respondent had carried out as much investigation as was necessary?

 

Judge Horne even acknowledged in his reasons for the Judgement that ‘The investigation was certainly imperfect’, yet he still found it to be sufficient.

 

 

 

By allowing Disciplinary and Appeal Officers to rely solely on their own alleged knowledge to dismiss the Claimant, Judge Horne removed the need for investigations to establish facts; as investigations are fact finding exercises this in turn removed the need to carry out investigations altogether.

 

By accepting the disciplinary investigation as sufficient, despite the Respondent not following their own disciplinary procedures, not following up on issues raised, and despite the KEY issue not being investigated, Judge Horne deliberately aided the Respondent’s case because he allowed them to get away with failing to carry out a reasonable investigation.