Judge Horne did not apply the 'Burchell' test to Respondent's beliefs

 

According to ‘British Home Stores Ltd v Burchell, which was the case law referred to by Judge Horne at tribunal, for a belief to be reasonable it must have reasonable grounds.

 

 

1. Enhanced Fire Safety Training: in particular how to organise a fire evacuation.

 

At no point during the disciplinary investigation, disciplinary hearing or appeal hearing did the Respondent state they ‘believed’ the Claimant knew how to organise a fire evacuation.

 

The Respondent made an assumption at the Disciplinary Hearing which was refuted by the Claimant but, from thereon, without reviewing the Claimant’s training records, or investigating the issue, or gaining any additional information, the Respondent kept stating the Claimant ‘should know’ how to organise a fire evacuation. They make no such claim of a ‘belief’ in their ET3 form or written tribunal statements. Any time the Respondent mentions fire training in regard to the Claimant they simply state he ‘should know’ but, fail to disclose anything in support of their claim.

 

It was Judge Horne himself at tribunal who referred to this 'should know' statement as a ‘belief’ and treats it as a reasonable belief.

 

 

The issue of this particular training was twofold; there was training under the previous owners and, there was training under the Respondent after they took over.

 

With regard to training under the previous owners: Judge Horne was aware that the Claimant had worked for the previous owners for several years and had first-hand knowledge of staff training. Judge Horne was aware through written statements that the Respondent took over the business in June 2014 and its witnesses had only joined the hotel in June/July and August 2014 – which meant they did not have first-hand knowledge of staff training prior to June 2014.

 

Judge Horne was also aware that staff training under the previous owners was not part of the disciplinary investigation carried out by the Respondent as there was nothing recorded in the investigation/disciplinary/appeal notes – which meant there were no investigatory statements or material evidence to support the Respondent’s ‘belief’ or refute the Claimant’s first-hand knowledge of training.

 

Judge Horne was also aware that all three Respondent witnesses stated in their written statements they saw no need to carry out further investigations beyond what was stated in the investigation/disciplinary/appeal notes – which again meant there were no investigatory statements or material evidence to support their ‘belief’ or refute the Claimant’s first-hand knowledge of training.

 

Judge Horne was also aware that no material evidence from the previous owners, relating to the Claimant doing enhanced training, was disclosed to the Tribunal despite a case management order for disclosure of such material. The only inference which can be taken from this failure to disclose training records is that the records themselves do not support the Respondent - ie they do not show the Claimant undertaking any such enhanced fire safety training with the previous owners.

 

Taking all that into account, there were no reasonable grounds for the Respondent to have a reasonable belief, or for Judge Horne to find they had, in regard to the Claimant’s training under the previous owners; yet curiously Judge Horne did not apply ‘Burchell’ in this instance and found in favour of the Respondent.

  

 

 

With regard to training under the Respondent: the Respondent’s belief of the Claimant’s training could have been reasonable had the Respondent’s witnesses been personally involved with the Claimant's training, or investigated the Claimant’s training, or had information regarding the Claimant’s training disclosed to them; but neither of those things happened.

 

Judge Horne was aware that the Claimant’s training with the Respondent  was not part of the disciplinary investigation as there was nothing recorded in the investigation/disciplinary/appeal notes – which meant there were no investigatory statements or material evidence to support the Respondent’s ‘belief’ or refute the Claimant’s statements.

 

Judge Horne was aware that the Investigation Officer waited 14 months until the Tribunal before disclosing to anyone he had personally carried out enhanced fire safety training with the Claimant; but Judge Horne was also aware this new information had not been corroborated, that the Investigation Officer had failed to document this in his investigation notes, and failed to pass this information on to the Disciplinary/Appeals Officers, meaning they did not have this information when making their respective decisions.

 

Judge Horne was also aware that all three witnesses stated in their written statements they saw no need to carry out further investigations beyond what was stated in the investigation/disciplinary/appeal notes – which meant there were no investigatory statements or material evidence to support the Respondent’s ‘belief’ or refute the Claimant’s statements.

 

Judge Horne was also aware that no material evidence from the Respondent, relating to the enhanced fire safety training, was disclosed to the Tribunal despite a case management order for disclosure of such material. The only inference which can be taken from this additional failure to disclose training records is that the records themselves do not support the Respondent - ie they do not show the Claimant undertaking any such enhanced fire safety training with the Respondent.

 

The Claimant was a Supervisor under the previous owners but appointed to the position of GSM under the Respondent by the new General Manager (who was also the Disciplinary Officer). The previous owners did not have GSMs; it was a brand new position, more senior than a Supervisor, which was added to the hotel by the Respondent.

 

At tribunal the Disciplinary Officer said he 'believed' all GSMs knew how to organise a fire evacuation but gave no grounds for such a belief. That could not have been a reasonable belief because he had no idea what training the Claimant had undertook and made no attempt to find out.

 

The Disciplinary Officer knew the previous owners did not have the job role of GSM which, by definition, means no GSM training was done with the previous owners. The Disciplinary Officer made no attempt to find out what training the Claimant had actually done with the previous owners.

 

The Respondent themselves didn't have the role of GSM which, by definition, means there was no GSM training from the Respondent's own company. The Disciplinary Officer made no attempt to find out what training the Claimant had actually done with the Respondent's company.

 

The role of GSM was introduced months after the Respondent took over the hotel when they signed up to a franchise agreement with another hotel brand. The Disciplinary Officer made no attempt to find out what training the Claimant had actually done with regard to the franchise company.

 

With regard to the Claimant's training in general; the Disciplinary officer had no first-hand knowledge, didn't review the Claimant's training records, and had no information disclosed to him about the Claimant's training.

 

Taking all that into account, there were no reasonable grounds for the Respondent to have a reasonable belief, or for Judge Horne to find they had, in regard to the Claimant’s training under the Respondent; yet curiously Judge Horne did not apply ‘Burchell’ and found in favour of the Respondent.

 

 

 

2. Franchise Training: in particular the Claimant being trained on the new Procedures.

 

Judge Horne had viewed an E-Mail from the Respondent which included an admission from the Disciplinary Officer that there were no company procedures in place for the Claimant to follow with regard to Management being on site all the time. Judge Horne was therefore aware the Claimant had not been given any guidance from the Respondent's own company on the issue.

 

At Tribunal the Respondent couldn't rely on their own company procedures because they had none in place, instead they relied on procedures from the Franchise Company; a franchise the Respondent signed up to a few moths after taking over the hotel. However, the document disclosed by the Respondent was dated as being issued six months after the Claimant was dismissed. Judge Horne was therefore aware that the disclosed document was not in force at the time the Claimant was employed. However, Judge Horne took it upon himself to declare there may have been a similar document in force at the time the Claimant was dismissed (but we will never know that as none was disclosed).

 

Judge Horne was also aware there was an unresolved issue as to whether or not the Claimant had been trained on the new Franchise Procedures. The Claimant stated he had not done the particular training in question and the Respondent had failed to investigate or resolve the issue. Judge Horne then decided it was not necessary for him to resolve the issue at Tribunal.

 

Without any first-hand knowledge of the Claimant's training, without any investigation into the Claimant's training, without any records or information being disclosed about the Claimant's training, without any procedures of their own and an unresolved issue regarding the franchise procedure training, the Respondent concluded that the Claimant was trained in the new franchise procedures.

 

Furthermore, the Respondent also concluded it was procedure of the previous owners to have a 'Duty Manager' on site all the time. How the Respondent could make such a conclusion when they did not investigate the issue and when they themselves had no such procedures in place is a mystery.

 

Taking all that into account, there were no reasonable grounds for the Respondent to have a reasonable belief, or for Judge Horne to find they had, in regard to the new franchise procedure training or the procedures of the previous owners; yet curiously Judge Horne once again did not apply ‘Burchell’ and found in favour of the Respondent.

 

 

 

Regarding the ‘Burchell’ test:

 

  • The Respondent had a belief in the Claimant’s misconduct; so had passed the first part of the test.

 

  • The Respondent’s belief did not have reasonable grounds because they had no first-hand knowledge of the Claimant’s training, had no information disclosed to them regarding the Claimant’s training, did not investigate the Claimant's training, and did not review the Claimant’s training records; so they had failed the second part of the test.

 

  • The Investigation Officer did not investigate or establish the KEY issue of training, specifically the Claimant’s training, therefore the investigation could not be reasonable; so the Respondent had failed the third part of the test.

 

 

Had Judge Horne applied ‘Burchell’ to the Respondent’s ‘beliefs’ of the Claimant's training, their beliefs would not have been reasonable. By not applying ‘Burchell’, Judge Horne has deliberately aided the Respondent’s case.

 

 

 

While under oath the Appeal Officer stated that, after the Claimant was dismissed, the company put procedures in place so there did not need to be a sleep-in manager at the hotel during the night shift. Judge Horne confirmed with the Appeal Officer that these procedures were in fact put in place after the Claimant was dismissed.

 

The only procedures that could have been put in place were 1) have a manager on shift every night or, 2) train the night staff sufficiently so there did not need to be a sleep-in manager.

 

All the way through the tribunal, the Respondent maintained the other night staff had done training so they could be left on their own during the night without a manager on site (the Respondent even referred to these staff as Duty Manager at tribunal, something they had never called them during the disciplinary process). Judge Horne took this to be a true fact/belief from the Respondent without any corroborating evidence or reasonable grounds. This alleged training was then used to undermine the Claimant's statement that the staff he left in charge had the same training as the night staff.

 

If the Respondent had a reasonable belief that the other night staff were sufficiently trained, there would be no need to put procedures in place to enable the night staff to work without a sleep-in manager. By putting these procedures in place, the Respondent has shown that they actually believed the other night staff were not sufficiently trained to be left on their own without a manager on site. In fact, having a sleep-in manager every time the Claimant was off work showed that the Respondent believed the other night staff were not sufficiently trained to be left on their own without a manager on site. This would tend to favour the Claimant's statement that the night staff were not trained.

 

Once again, Judge Horne did not apply 'Burchell' to the Respondent's belief of staff training. Instead he found it reasonable for the Respondent to believe the night staff were sufficiently trained; this is despite the Respondent failing to review staff training, failing to disclose training records in breach of the Case Management Order, and putting procedures in place which wouldn't be needed if the night staff were sufficiently trained in the first place.