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 his Reasons
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. 'Insufficiently trained staff'
does not equate to a 'staff shortage caused by absent staff'; they are
two completely different things!
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 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 on an official report that the staff were not
trained, called into question the Respondent's belief of staff training
at that point and should have compelled the Respondent to verify staff
training as it had been shown their belief was not accurate.
The Respondent did not
verify staff training at that point or at any time afterwards.
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 shown the
2014 occasion was not comparable with the 2015 occasion as they
were not 'like with like'.
Instead of stating the real reason the Claimant stayed over, which was supported by
evidence, Judge Horne falsely stated there was a staff shortage in
October 2014, which had no supporting documentary evidence.
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 put staff on shift who had not been properly trained to carry
out their duties; which would tend to support that the Respondent didn't
know if staff were trained or not and that they simply took a chance
when placing staff on the rota.
2) Judge Horne falsely stated
‘During the course of the meeting (although it is not entirely clear
on which date) the claimant told
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
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
Appeal Officer] to the claimant’.
were two unresolved issues at the time the Claimant was dismissed - one
regarding the training of the other night staff, and one regarding
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 never investigated and was left unresolved.
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
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 it was the Claimant who raised the
issue of sleep-in managers;
the Appeal Officer put no such point to the Claimant, as falsely stated
by Judge Horne.
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.
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
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
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.
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.
the Claimant ought to have been made aware of any issues which could
affect staff abilities to carry out their duties. As established at
tribunal, the Claimant was never made aware that the Chef had issues
which made him unsuitable to be left in charge.
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.
This was the only Chef
employed by the Respondent at the time and he was in charge of the kitchen. The
he had the right level of sound judgment to
be in charge of the
kitchen and any staff entering the kitchen,
the right level of sound judgment to
prepare and cook guest food in line with health & safety requirements,
the right level of sound judgment to
operate kitchen appliances including the use of gas and sharp cutting
the right level of sound judgment to
evacuate the kitchen in an emergency. Any drinking problem this Chef
may have had apparently did not affect his level of sound judgement when
it came to hazards in the kitchen.
The Respondent also admitted they had never disclosed information to the Claimant
regarding the Chef's drinking problem. 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.
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
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 and relevant
information to the Claimant; information which was vital to the Claimant
so he could make an informed decision when allocating cover staff.
Judge Horne falsely stated
the Claimant was a ‘highly experienced GSM’
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).
Judge Horne falsely stated
'the claimant was insistent that, aside from not telephoning
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.
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.
Judge Horne falsely stated
that the stress which the Claimant suffered from was 'the
claimant's perception of stress at work'.
Judge Horne was not
aware that a the Claimant's Doctor had recently diagnosed him as
suffering from 'Workplace Stress'. But
Judge Horne was aware that the Claimant had recently returned to work
from sickness. The sickness could have been for anything however,
the fact a 'Workplace Stress Assessment' was conducted a few
weeks later should have given some indication to Judge Horne about the
nature of the sickness.
Judge Horne failed to link the sickness with the assessment, Judge Horne
was still fully aware that the 'Workplace Stress Assessment'
itself had found the Claimant was showing signs of stress. Therefore, it
was not the Claimant's perception of stress at work; it was in fact the
assessment's findings that the Claimant was showing signs of stress at
work and it also found the work related causes of that stress.
By Judge Horne stating the Claimant's stress was
claimant's perception of stress at work',
he played down the stress as nothing more than the Claimant's opinion.
This aided the Respondent because opinions can be brushed aside as
they carry far less weight than the official findings of an assessment
carried out by the Respondent.
to the previous final written warning from 2014:
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
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.
Judge Horne falsely stated
‘The 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
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
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