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'.
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
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
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
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
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
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 stated ‘The 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’.
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
investigation as sufficient despite KEY issue not investigated')