Judge Horne made several false statements which aided the Respondent's case

 

One thing you do not expect a Judge to do is make false statements to aid the case of one party – but that is exactly what Judge Horne did.

  

 

 

In relation to the disciplinary process conducted in 2015: 

1) Judge Horne falsely stated there was a ‘staff shortage’ which caused the Claimant to stay over past his finish time in October 2014. It was claimed the shortage was because a member of staff failed to turn up for their shift.

 

Judge Horne was aware that the Claimant had stated under oath there was no staff absences on the date in October 2014. The Claimant stated in his appeal letter and at tribunal that the staff on site in October 2014 were simply not properly trained to do the jobs they were on shift to do, and he stayed over to help out. 'Untrained staff' does not equate to a 'staff shortage caused by absent staff'.

 

Judge Horne was also aware that material evidence in the bundle, namely management reports of the time, supported the Claimant’s view that there were no staff absences on the date in October 2014, and also confirmed the staff put on shift were not properly trained.

 

Judge Horne was aware there was conflict between the Disciplinary Officer and Appeal Officer as to the date the Claimant actually stayed over in October 2014 and his reasons for doing so. The Disciplinary Officer dismissed the Claimant by alleging there was a front office management absence on the 24th; the Appeal Officer upheld the dismissal by alleging there was a kitchen staff absence on the 25th.

 

Judge Horne was also aware that, as well as the Disciplinary and Appeal Officer’s statements conflicting with each other, they both conflicted with material evidence in the bundle, namely the management reports of the time. Those reports showed no staff absence of any kind on either of the dates cited by the Disciplinary and Appeal Officers.

 

Judge Horne was further aware there were no investigation notes or witness statements relating to either of the dates in question which indicated the issue had not been investigated. In fact, according to the Disciplinary Officer at tribunal, the issue was only brought to his attention after the disciplinary hearing had taken place. None the less, this new allegation was subsequently added to the dismissal letter without it being investigated or put to the Claimant.

 

As the Respondent put the staff rota together, they clearly believed the staff they put on the rota were trained to do the jobs they were put on shift to do.

 

The fact that staff put on the rota could not do the jobs they were on shift to do, which then caused the Claimant to stay over after his shift and make a comment in an official report that the staff on shift were not trained, shows that the Respondent's belief of staff training was incorrect and unreliable.

 

Not only did Judge Horne make this false statement, he also passed it off as a ‘statement of fact’ despite material evidence in the bundle stating otherwise. Had Judge Horne stated the real reason for the Claimant staying over after his shift, that would have cast doubt on any beliefs held by the Respondent regarding staff training.

 

Instead of stating the real reason, which was supported by material evidence, Judge Horne falsely stated there was a staff shortage in October 2014. This false statement deliberately aided the Respondent’s case as Judge Horne made it possible to compare the 2014 occasion with the occasion in 2015 that led to the Claimant’s dismissal as ‘like with like’. It then allowed Judge Horne to state that this ‘like with like’ comparison 'demonstrated that the claimant was aware of different options that he had when there was a shortage of staff in a particular area'. The false statement by Judge Horne also covered up the fact that the Respondent's belief of staff training was unreliable!

 

 

 

2) Judge Horne falsely statedDuring the course of the meeting (although it is not entirely clear on which date) the claimant told [the Disciplinary Officer] that [night staff] had received enhanced fire training prior to the respondent taking over the hotel'.

 

Judge Horne read the disciplinary minutes from both days so it should have been an easy task to find out which date the Claimant told the Disciplinary Officer about the night staff receiving enhanced training.

 

The reason Judge Horne is not entirely clear on which date this occurred is because, the Claimant did not tell the Disciplinary Officer any such thing, it is not documented anywhere in the disciplinary minutes and it was not stated at any time during the tribunal.

 

By Judge Horne falsely stating the Claimant told the Disciplinary Officer that night staff had received enhanced fire safety training, he deliberately aided the Respondent’s case as that statement alone indicated the Claimant would know the staff in question had received the training, which would then negate the Claimant's  ‘like with like’ comparison of the training done by the staff he left in charge.

   

 

 

3) Judge Horne falsely stated, in regard to a defect which affected the reasonableness of the issue regarding sleep-in managers ‘that defect was largely cured on appeal because that point was put squarely by [the Appeal Officer] to the claimant’.

                                                                                   

There were two unresolved issues at the time the Claimant was dismissed - one regarding the training of the other night staff, and one regarding sleep-in managers.

 

Judge Horne was aware that the Investigation Officer had put to the Claimant that management always sleep over.

 

Judge Horne was also aware that the Claimant had refuted the Investigation Officer’s statement. The Investigation Officer had no knowledge of sleep-in managers prior to him being employed at the hotel, therefore he could not know if managers had always slept over. The Claimant himself was non-management for about 4 and half years and he had first-hand knowledge that managers didn't always sleep over. The issue of sleep-in managers was left unresolved at investigation stage.

 

Judge Horne was aware the Investigation Officer and the Disciplinary Officer only commenced employment at the hotel in July and August of 2014 and neither one had any knowledge of sleep-in managers at the hotel prior to their start dates. Therefore, at very best, without any investigation into the issue, both officers would only be able to account for sleep-in managers from July 2014.

 

Yet, at tribunal, despite the previous owners and the Respondent being two completely different hotel brands and running the hotel differently with different procedures in place, Judge Horne was satisfied that both Officers would know between themselves that nights at the hotel, for the past 6 years, had always been covered by sleep-in managers due to the amount of nights they themselves slept over in the past 6 months.

 

Judge Horne acknowledged the issue of sleep-in managers was never put to the Claimant at disciplinary stage and, the Claimant was not given a reasonable opportunity to meet the argument.

 

Judge Horne stated this was a defect which affected the reasonableness of the issue regarding sleep-in managers.

 

The appeal notes show that at appeal stage, the Claimant raised the issue of sleep-in managers and, the Appeal Officer merely acknowledged the issue by asking 'was there not a manager sleeping' and further asking 'Have you got any documents that state that someone was left on their own in the building'. At no point did the Appeal Officer confirm that managers have always slept over in the hotel or confirm a manager slept over on a specific night raised by the Claimant. The Appeal Officer saw no reason to investigate the issue of sleep-in mangers and it was again left unresolved.

 

Therefore, when the Appeal Officer upheld the dismissal, the defect which affected the reasonableness of the issue regarding sleep-in managers still existed.

 

Judge Horne read the appeal notes and was therefore aware the defect had not been cured in the slightest. Judge Horne read the appeal outcome letter and was aware the issue of sleep-in managers was not mentioned at all or relied on to uphold the dismissal.

 

Judge Horne therefore knew that, when the decision to uphold the dismissal was made, the reasonableness of the issue regarding sleep-in managers was still very much affected. By Judge Horne falsely stating the defect was ‘largely cured’ at appeal, he deliberately aided the Respondent’s case because he removed an issue which affected the reasonableness of the dismissal.

   

 

 

4) Judge Horne falsely stated the Claimant did not have 'line management responsibility' for the Chef he left in charge. He went on to say because of this, the Claimant  would not know the reason why the Respondent felt the Chef did not have the right level of sound judgement to be left in charge; therefore the Claimant took a risk by putting the Chef in charge.

 

Judge Horne was aware that prior to the Respondent taking over the business, the hotel was departmentalised which meant each department had their own line manager to manage staff in their respective departments.

 

Judge Horne was also aware that when the respondent took over the hotel they introduced a new system which got rid of all departments and the hotel was run as one big department with staff now multitasking from one area to another. The Chef covered reception when needed and reception staff covered the kitchen when needed. It was now 'shifts', not departments, which had 'line managers'.

 

As a 'line manager' holds authority in a vertical chain of command, the Claimant had authority and responsibility for all non-management staff below him in the chain of command. The Chef was a non-management employee according to the Respondent therefore, the Claimant's authority and responsibility extended to Chef when he was on shift with the Claimant.

 

It was never stated the Claimant had line manager responsibility for the Chef but, it was never stated he hadn't. It ought to have been obvious to Judge Horne, in his capacity as a highly experienced employment Judge and with the information disclosed to him, that while the Claimant was the only manager on site he had 'line manager' responsibility for all staff including the Chef.

 

 

As the Respondent had tasked the Claimant with arranging cover for absent staff when needed, it was their responsibility to furnish the Claimant with any information relevant to the task.

 

At Tribunal the Respondent stated the Chef did not have the right level of sound judgment to be left in charge because he had a drinking problem. But the Respondent also admitted they had never disclosed that information to the Claimant. A member of staff with a drinking problem was important information which should have been disclosed to the Claimant so he could make an informed decision when arranging cover staff.

 

When the Claimant left the Chef in charge, he didn't take a risk as stated by Judge Horne, he weighed up the options and made a judgement call based on the information which was available to him at the time. Had he been aware of a drinking problem, the Claimant would never have left the Chef in charge.

 

By Judge Horne falsely stating the Claimant didn't have 'line management responsibility' for the Chef, he aided the Respondent by justifying their failure to disclose specific information about the Chef to the Claimant.

 

 

 

5) Judge Horne falsely stated the Claimant was a ‘highly experienced GSM (Guest Service Manager).

 

Judge Horne was aware that when the Respondent took over the business in June 2014, the Claimant was not a 'GSM'.

 

Judge Horne was aware that prior to the Respondent taking over, the Claimant had only been a Supervisor for about eight months and, prior to that he had been in a non-management role as Night Porter for four and half years at the hotel.

 

Judge Horne was aware from the Claimant’s employment contract, and from Respondent written statements, the Claimant only became a ‘GSM’ in October 2014, several months after the Respondent took over the hotel. This meant, on the day the Claimant made the decision which led to his dismissal, he had only been a ‘GSM’ for three months.

 

Judge Horne was aware, from Respondent written statements, that they 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, no GSM induction took place, and no GSM training records were ever disclosed to show that GSM training took place or was ongoing.

 

Judge Horne was aware that nowhere in the notes from the entire disciplinary process, or from the Respondent tribunal statements, does the Respondent refer to the Claimant as a ‘highly experienced GSM’.

 

Three months as a GSM does not make someone a ‘highly experienced GSM’. By falsely stating the Claimant was a ‘highly experienced GSM’, Judge Horne aided the Respondent’s case as he now gave ‘reasonable grounds’ for the Respondent’s ‘belief’ that the Claimant would know how to organise a fire evacuation (according to Respondent, 'organising' a fire evacuation was different to 'following' fire evacuation procedures).

 

 

 

6) Judge Horne falsely stated 'the claimant was insistent that, aside from not telephoning [the General Manager], he had done nothing wrong'.

 

Judge Horne was aware that the Claimant had never once stated he had done nothing wrong.

 

Judge Horne was aware that the Claimant had stated, and maintained, the Respondent had not shown any evidence of him doing anything wrong. The Claimant was always open to the fact that he may have done something wrong but his view was that the Respondent simply saying he had done something wrong, without any evidence to back it up, was not enough to show he had done something wrong.

 

The only evidence put forward by the Respondent at disciplinary, and at tribunal, that the Claimant had done something wrong was verbal evidence from witnesses who had not investigated the actual allegation. The verbal evidence had no reasonable grounds; it was merely conjecture. The investigation that was conducted did not uncover any evidence of wrong doing or establish any facts of wrong doing.

 

Judge Horne aided the Respondent by making this statement because he used the statement to justify why the Respondent didn't need to take the Claimant's mitigation into account.

 

 

 

 

 

In relation to the previous final written warning from 2014: 

7) Judge Horne falsely stated, the claimant stated that he had emailed the computer records to his personal e-mail address’.

  

Having read the investigation notes, Judge Horne was fully aware that no such allegation was raised by the Investigation Officer and no such admission was made by the Claimant.

 

Having read the minutes of the disciplinary hearing, Judge Horne was again fully aware that no such allegation was raised by the Disciplinary Officer and no such admission was made by the Claimant.

 

Having read the disciplinary outcome letter, Judge Horne was fully aware that no such admission was relied on by the Disciplinary Officer in order to give the final written warning.

 

Having read the minutes of the appeal, and the appeal outcome letter, Judge Horne was fully aware that no such allegation was raised by the Appeal Officer, no such admission was made by the Claimant and, no such admission was relied on to uphold the final written warning.

 

Judge Horne was fully aware that at no point during the entire disciplinary process was it put to the Claimant that he had emailed something to his personal e-mail address, and further, that the Claimant made no such admission.

 

The first time there was any mention of the Claimant emailing anything to his personal email address was in the tribunal witness statements from the Respondent. The Investigation Officer stated the Claimant admitted ‘emailing the photo to his personal email address’; yet this was not documented in the investigation notes or disclosed to the Disciplinary and Appeal Officers at the time. The Disciplinary Officer stated the Claimant admitted ‘emailing a customer’s details to a personal email address’; yet this was not documented in the minutes of the disciplinary hearing or disclosed to the Appeal Officer at the time.

 

By Judge Horne stating the Claimant had made such an admission, despite no admissions being documented, disclosed or relied on at the time, he deliberately aided the Respondent’s case because it then allowed Judge Horne to use the ‘admission’ of 'the Claimant emailing to his personal email address' as justification for the Respondent’s actions later in his judgement.

  

 

 

8) Judge Horne falsely statedThe claimant did not suggest that the warning was given in bad faith’.

 

The Claimant had stated in his ET1 form that the warning had been issued unfairly. Judge Horne read the ET1 form and was therefore aware of a suggestion that the warning was given in bad faith.

 

The Claimant had put it squarely to the Appeal Officer, in his appeal letter, that the warning had been issued unfairly. In the appeal outcome letter the Appeal Officer stated 'A previously issued warning was discussed as part of the appeal hearing on your argument that the decision to dismiss you had been unfair. The merits of this was not considered, it was its existence'. This was clear evidence that the Appeal Officer did not review the previous warning; he simply deemed the warning as being issued fairly because it existed. Judge Horne read the appeal and outcome letters therefore he was fully aware of a suggestion that the warning was issued in bad faith, and was further aware the Respondent did not review the warning to meet the Claimant's argument.

 

The Claimant had stated in his tribunal witness statement that the warning in question had been issued unfairly. Judge Horne read the witness statement and was therefore aware of a suggestion that the warning was given in bad faith.

 

The Claimant had stated under cross examination that the warning in question had been issued unfairly. Judge Horne was listening to the cross examination and was therefore aware of a suggestion that the warning was given in bad faith.

 

There were four separate occasions, three of them documented and read by Judge Horne, where the Claimant suggested the warning was given in bad faith.

 

 

 

By Judge Horne falsely stating the Claimant had not suggested the warning was given in bad faith, he aided Respondent’s case because Judge Horne used that as justification not to look behind the warning itself. With the warning intact, the path was clear for Judge Horne to take the warning into account and bring the dismissal just about inside the band of reasonableness.

    

Each false statement made by Judge Horne aided the Respondent's case as they each removed an obstacle which would lead to the dismissal being unfair.