Judge Horne allowed Respondent to rely on allegetions not brought to Claimant's attention at disciplinary

 

The case of ‘O’Farrill v New Manage Ltd t/a Hooks Gym London Shootfighters stated that new allegations which come to light during the investigatory stage can be added to the process, but any disciplinary sanction must be imposed only in respect of allegations that were properly investigated and brought to the employee’s attention as part of the proceedings.

 

 

 

Judge Horne was aware that the Disciplinary Officer relied on an allegation from a specific date in order to dismiss the Claimant – namely that on 24th October 2014 the Claimant stayed over after his shift had finished due to a front office management absence.

 

Judge Horne was also aware that the allegation had not been investigated or brought to the Claimant’s attention as part of the disciplinary hearing. It was first mentioned in the dismissal letter sent to the Claimant.

 

At tribunal, the Disciplinary Officer admitted he had only become aware of the issue during the few hours between the disciplinary hearing finishing, and him writing the dismissal letter (which begs the question - if he didn't conduct any further investigations, and he didn't approach the Investigation Officer to question him, how exactly did he become aware of this issue?)

 

Judge Horne was further aware that, at appeal stage, the Claimant met the argument for this allegation as he was not at work on the date quoted by the Disciplinary Officer. In support of his case the Claimant submitted the staff rota for the date in question and also submitted a manager report to show there was no management absence.

 

Judge Horne was also aware that the Appeal Officer had enquired with the Claimant if there could be a mistake with the date cited by the Disciplinary Officer in the dismissal letter. The Claimant said a mistake with the date could be possible because he had stayed over on the 25th due to the staff on shift not being trained to cook breakfast for guests but, the Claimant also stated that if the Disciplinary Officer was referring to the 25th then he had also got the reasons wrong because there was no management absence that day.

 

If a mistake had been verified, that would mean the Disciplinary Officer could not retain information accurately after a mere few hours; this would then cast doubt on his ability to retain information accurately after 14 months.

 

The Appeal Officer did not approach the Investigation or Disciplinary Officer for questioning. A mistake regarding the date cited by the Disciplinary Officer was never investigated or confirmed. The Appeal Officer stated in his 'statement of fact' for the tribunal that he saw no reason for investigation after the appeal hearing had finished.

 

 

 

Judge Horne was aware that the Appeal Officer then relied on a similar allegation from a specific date in order to uphold the dismissal – namely that on 25th October 2014 the Claimant stayed over after his shift had finished due to a kitchen staff absence.

 

In the appeal outcome letter, the appeal Officer stated he did investigate the 25th October and even cited a witness. However, not only did this contradict his 'statement of fact' at tribunal, this new allegation and alleged witness were never brought to the Claimant’s attention as part of the disciplinary and appeal hearings and the Claimant was not given a fair chance to meet the argument. The new allegation was not supported by the manager reports submitted as material evidence by the Claimant at appeal stage - those reports, which Judge Horne read, showed no staff absence of any kind. Furthermore, no investigation notes or witness statements were disclosed relating to this alleged investigation conducted by the Appeal Officer.

  

 

 

In Judge Horne's reasons for his decision he aided the Respondent's case by using the Appeal Officer's version of the allegation in order to justify the fairness of Claimant's dismissal - namely that on 25th October 2014 the Claimant stayed over after his shift due to a staff shortage caused by a staff absence. In doing so Judge Horne ignored that the issue had never been investigated so it was never established if the Claimant was asked to stay over or chose to stay over of his own accord, ignored the documented reports of the day which showed no staff absence, ignored that another manager had already taken over the shift so the Claimant was no longer in charge or on shift and his decision to stay over was a personal choice not a management choice.

 

Judge Horne relied on this issue despite it not being brought to the Claimant's attention during the disciplinary or appeal hearings, despite no investigation notes or witness statements disclosed from the Appeal Officer's alleged investigation, and despite material evidence in the bundle contradicting the Appeal Officer - as that evidence supported the Claimant and showed as fact there was no staff absence on the date in question which, by definition, meant there could be no staff shortage caused by staff absence (see 'Making False Statements' section).

 

 

 

In a request for Judge Horne to reconsider his decision, the Claimant raised this issue of the Disciplinary and Appeal Officers relying on allegations that were not investigated or brought to his attention during proceedings.

 

In response Judge Horne stated The claimant does not agree with paragraph 49 of the Reasons, and takes issue in particular with my finding that [the Disciplinary Officer] had the example of 25 October 2014 in mind at the time of the reconvened disciplinary meeting. Whether that finding is correct or not, it is clear that [the Disciplinary Officer] had that example in mind by the time he wrote the dismissal letter. There is no prospect of my finding that [the Disciplinary Officer] did not take it into account in reaching his decision to dismiss’.

 

The Claimant was not disagreeing that the Disciplinary Officer had taken an issue into account when reaching his decision to dismiss; the Claimant was very much aware an issue had been taken into account. The Claimant was stating the issue had not been investigated or brought to his attention during the disciplinary hearing as required by ‘O’Farrill v New Manage Ltd t/a Hooks Gym London Shootfighters’. Furthermore, a similar issue relied on to uphold the dismissal had also not been investigated or brought to his attention during the appeal hearing.

 

Why did Judge Horne allow the Disciplinary Officer to rely on something which the Respondent admitted was not investigated or brought to the Claimant's attention during the Disciplinary Hearing?

 

Why did Judge Horne further allow the Appeal Officer to rely on something which the Respondent admitted was not investigated or brought to the Claimant's attention during the Disciplinary Hearing?

 

Judge Horne simply ignored case law relating to Disciplinary Procedures and brushed over that his 'finding of fact' was not correct!

 

 

 

 

At Tribunal the Respondent alleged the Claimant was trained to know there had to be a Duty Manager on site at all times. To support that claim the Respondent disclosed a copy of the franchise company procedures which only came into force six months after the Claimant was dismissed. Judge Horne stated 'At no point during this meeting or the previous meeting was it put to the claimant either that he had been trained to know that there always had to be a Duty Manager on site, or that, during the times when [the other night staff] were left in charge, there had always been a manager sleeping on the premises'.

 

This specific training was not relied on to dismiss the Claimant, as confirmed by it's absence in the dismissal letter, but the Respondent later relied on it at tribunal to justify dismissal. Judge Horne confirmed this was was never put to the Claimant at disciplinary stage and he was not given a fair chance to meet the argument.

 

Judge Horne also acknowledged that the disclosed franchise company procedures only came into force six months after the Claimant's dismissal; the Respondent had not disclosed a copy of the franchise procedures which were in force when the Claimant was employed, or a copy of their own procedures. Judge Horne further deemed it unnecessary to resolve an outstanding issue as to whether or not the Claimant had been trained on the new franchise procedures. Yet Judge Horne accepted the Respondent's claim that it was procedure to have a Duty Manager on site all the time and that the Claimant was trained to know this.

 

 

At Tribunal the Respondent also alleged there was always a sleep-in manager when the Claimant was off work. Judge Horne stated that the Disciplinary Officer told the Tribunal that, whilst [the other night staff] were on duty, there was a manager invariably asleep on the premises. But that was in direct conflict to the written 'statement of facts' submitted by the Disciplinary and Appeal Officers; in those statements they both stated 'it is true [the other night staff] have worked night shifts before without a designated manager' (that statement was made in the context of there being a manager on site).

 

Judge Horne then went on to state ‘As I have already recorded, this was not put to the claimant and he never had a fair opportunity to deal with it. I accept, however, that it was a factor that [the Disciplinary Officer] did have in mind at the time of reaching the disciplinary decision’. The question now is; how could the Disciplinary Officer have in mind that there was always a sleep-in manager on site when the Claimant was off work, when the Disciplinary Officer also knew to be true that the other night staff had worked shifts without a designated manager?

 

Sleep-in Managers was not relied on to dismiss the Claimant, as confirmed by it's absence in the disciplinary notes and dismissal letter, but the Respondent later relied on 'sleep-in managers' at tribunal to justify dismissal. Judge Horne confirmed this was was never put to the Claimant at disciplinary stage but then he allowed the Respondent to rely on 'sleep-in mangers' at tribunal.

 

 

 

Judge Horne aided the Respondent's case by allowing them to rely on the issues of Duty Managers, Franchise Training and Sleep-In Managers, which were not investigated, resolved or brought to the employee’s attention as part of disciplinary proceedings.