Judge Horne allowed the Respondent to pre-judge the Claimant prior to any hearings

 

Judge Horne was aware that the Respondent’s disciplinary procedure provided for two sanctions which could be imposed on the Claimant in this instance if it was found he had committed an act of misconduct: 'Demotion' or 'Dismissal'.

 

Judge Horne was also aware that the Disciplinary Invite Letter only stated one sanction that could be imposed on the Claimant in this instance: 'Dismissal'. Therefore the Respondent was not looking to demote the Claimant and only had dismissal in mind from the start.

 

 

 

Judge Horne was aware that, in an email to the Claimant sent prior to the disciplinary hearing, the Disciplinary Officer stated he was already aware of the facts and that the disciplinary hearing itself  was for the purposes of hearing the Claimant's mitigation.

 

Judge Horne was also aware that, as a result of this email, the Claimant felt the outcome of the disciplinary hearing had already been decided as the Disciplinary Officer was only interested in mitigation which indicated he had already pre-judged that the Claimant was guilty of the alleged misconduct.

 

Judge Horne was further aware the disciplinary hearing took place over two days (with an 8 day gap between each part of the hearing) and the Claimant believed the decision to dismiss him was made before the reconvened disciplinary hearing took place because, prior to that particular hearing, the Respondent had adjusted the Claimant’s wages to take into account he would not be working at the hotel by the last two days of the month (the wages were paid by the BACS system which has to be initiated 3 days prior to actual payment - Claimant was sacked on 29th, his wages went into his bank account on 30th, which meant the BACS system was initiated at the very latest 27th which was two days prior to the reconvened hearing).

 

 

 

It was never mentioned or put to the Claimant at investigation stage that the staff he left in charge were insufficient and, the Claimant did not make any admission of any kind regarding the insufficiency of said staff. The Claimant admitted to leaving the hotel without a manager on site and gave his reasons for doing so.

 

Yet, at tribunal, the Disciplinary Officer admitted that on going into the Disciplinary Hearing, he had already decided the Claimant had admitted the allegation. He further stated that he had reached a concluded view about the insufficiency of cover staff, and of the risk to health and safety, before he had spoken to the Claimant (and this is without any investigation into the two issues).

 

The Disciplinary Officer therefore approached the hearing with a closed mind because he had pre-judge the Claimant’s guilt and could not be fair and impartial.

 

 

 

Likewise, the Appeal Officer admitted at tribunal that on going into the Appeal Hearing, he too had already decided the Claimant had admitted the allegation. He further stated that he had also reached a concluded view about the insufficiency of cover staff, and of the risk to health and safety, before he had spoken to the Claimant (and again this is without any investigation into the two issues).

 

The Appeal Officer therefore approached the hearing with a closed mind because he had pre-judge the Claimant’s guilt and he too could not be fair and impartial.

 

 

 

In his reasons for judgement, Judge Horne statedThe tribunal must remember that a final written warning always implies, subject only to any contractual terms to the contrary, that any subsequent misconduct of whatever nature will usually be met with dismissal, and only exceptionally will dismissal not occur’.

 

The Claimant had a live final written warning and, as such, a finding of guilt for further misconduct implied dismissal. The moment the Disciplinary and Appeals Officers regarded the Claimant as admitting the allegation, they had also decided on his guilt and, in turn, set the sanction to dismissal.

 

Guilt and sanctions are only supposed to be decided upon after the disciplinary hearing has taken place. It is clear that in this case, due to a live final written warning, pre-judgement of guilt set the sanction to dismissal prior to the disciplinary hearing taking place.

 

The Claimant was going to be dismissed and the disciplinary hearing itself was simply to hear if there were exceptional circumstances for the Claimant's actions which could prevent the dismissal from taking place. The Disciplinary Officer put it clearly in his email to the Claimant, ‘the disciplinary hearing was for the purposes of hearing your mitigation’.

 

 

 

By allowing the pre-judgement, Judge Horne aided the Respondent's case because he removed an obstacle which made the dismissal unfair.

 

(more pre-judgement in previous section 'Accepting investigation as sufficient despite KEY issue not investigated')