Judge Horne failed to take into account the previous warning breached Disciplinary Procedures & Employment Law

 

As mentioned elsewhere on this site, the Claimant stated several times that the previous warning was issued unfairly.

 

 

Brief details of previous warning

The Respondent alleged that Claimant had published 'Customer Personal Information' on social media and that the publication had 'damaged the business'.

 

Putting anything on social media about the company or its customers was a breach of the company's 'Social Media Policy'.

 

The Claimant had admitted to making a private post on social media about a guest, but the post did not identify the guest in any way. However, by definition of making the post, the Claimant had breached company 'Social Media policy'.

 

 

A breach of company social media policy would be met by either a verbal or written warning unless the investigation could show an effect on the business in which case a Final Written Warning would be issued.

 

The investigation failed to investigate if there was an effect on the business therefore could not substantiate an effect on the business.

 

 

At the disciplinary hearing the Claimant defended against the actual allegation that was put to him. He used the official and legally accepted definition of 'personal information' to show that no 'personal information' of any kind was published; therefore no damage could have occurred in the way the Respondent had alleged.

 

 

The Disciplinary Officer accepted that the social media post did not identify the customer which, by definition, meant the post contained no personal information.

 

 

However, the Disciplinary Officer stated "it is clear who and what you are referring too and therefore poses a threat to our reputation with our customers". That may well have been his opinion, but it was never substantiated. The post did not identify the customer, or the place of work, which by definition means it was not clear to anyone reading the post who or what it was referring to.

 

Posing a threat to the business, and causing actual damage to the business, are two different issues. If you see a threat you can deal with it before it causes damage and that is what the Respondent did; dealt with the issue before it had a chance to cause any damage. Yet, the allegation against the Claimant was that the post had caused actual damage to the business.

 

Contractual disciplinary procedures were quite clear in that damage had to be shown for the issue to be 'Serious Misconduct'. The investigation and the disciplinary hearing did not substantiate that damage was caused by the Claimant's private post on social media; damage to the business was never investigated and no supporting evidence of damage was ever disclosed.

 

 

None the less, a first and Final Written Warning was issued to the Claimant for 'Serious Misconduct'.

 

 

As the Respondent failed to substantiate what damage was done by the social media post, the sanction was not in accordance with the contractual disciplinary procedure.

 

 

The irony here is, the Respondent breached company procedures to give the Claimant a higher level of warning for breaching company procedure!

 

 

In Judge Horne's reasons for his decision he rejected the Claimant's argument on 'personal information' stating that the Claimant was concentrating on technical and legal definitions which distracted away from the general point of concern which was that the social media post was inappropriate. Judge Horne was fully aware that an inappropriate post on social media would carry the maximum sanction of a 'Written Warning' unless it could be shown the post had damaged the business. However, the allegation against the Claimant wasn't that the post was 'inappropriate', the allegation was much more serious in that the post was 'personal information' and had 'damaged the business'; by rejecting the Claimant's argument in this instance Judge Horne was effectively penalising the Claimant for defending against the very specific and serious allegations that were put to him!

 

Judge Horne also said the Respondent was entitled to look at the wider issues. Judge Horne was correct, the Respondent was entitled to look at the wider issues however, the Claimant was also entitled to have those wider issues put to him; case law stated that 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. The wider issues were not properly investigated or brought to the Claimant's attention during disciplinary proceedings which meant they could not be relied on to impose the sanction. Judge Horne was also fully aware that without damage to the business being substantiated, the wider issues would only carry the maximum sanction of a 'Written Warning' if they were taken into account.

 

 

The allegations against the Claimant were publication of 'customer personal information' and 'damage to the business' as a result of said publication, which were very serious allegations, and that is what the Claimant defended against.

 

Wider issues were never alleged or investigated, the Claimant was never made aware of any wider issues, and as such the Claimant was not given a reasonable opportunity to prepare or defend against any wider issues.

 

The Respondent couldn't issue a 'Final Written Warning' with the evidence they had as no damage to the business had been substantiated. If the Respondent took wider issues into account in order to give the 'Final Written Warning', they would be in breach of Employment Law and the warning would not be reasonable or given in 'Good Faith'.

 

 

 

Judge Horne read the Employee Handbook, specifically the disciplinary procedures, all of which formed part of the Claimant’s contract of employment. Therefore, Judge Horne was aware of the contractual procedures which had to be followed with regard to the Respondent issuing specific warnings.

 

Judge Horne read the investigation and disciplinary minutes so was aware that the previous warning had not been issued in accordance with the Respondent’s contractual disciplinary procedures i.e. the investigation did not show a serious or substantial effect upon operation or reputation of the business (because effect upon operation or reputation of the business was not investigated) which meant the maximum sanction in this instance could only be a 'Written Warning' which was a lesser sanction than a 'Final Written Warning'.

 

Judge Horne was also aware that wider issues were never alleged or investigated, that the Claimant was never made aware of any wider issues, and the Claimant was not given a reasonable opportunity to prepare or defend against any wider issues. The case of ‘O’Farrill v New Manage Ltd t/a Hooks Gym London Shootfighters stated that 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 further aware, from the disciplinary notes, that the Claimant's representative was not allowed to actually represent the Claimant. The Respondent would allow him to take notes but he was not allowed to ask or answer any questions; which was a breach of the ACAS code of practice.

 

 

In his reasons for Judgement, Judge Horne stated 'I fully understand the claimant's perception that a final written warning was too harsh. I have some sympathy for that point of view, but I cannot interfere with the warning on that ground'. The Claimant did not give a view about the warning being too harsh; the Claimant stated several times that the warning was issued unfairly. Judge Horne read the appeal notes and was fully aware the Claimant had stated the warning wasn't fair as it was based on matters of concern that were not laid out in the company's complaint against him. On reading the notes from the disciplinary process Judge Horne would have seen that issues relied on to give the warning were not investigated or put to the Claimant; which in itself meant the warning had breached Employment Law.

 

In his reasons for Judgement, Judge Horne also stated ‘Overall, in my view, it was just about reasonable of the respondent to view the claimant's conduct, taken with the final written warning, to merit dismissal’. If the Respondent had followed their own Disciplinary Procedures, as laid out in the Claimant's contract of employment, no final written warning could have been issued and the dismissal would not have entered the band of 'just about reasonable'. But the Respondent issued the warning in breach of their own disciplinary procedures and in breach of employment law; which Judge Horne conveniently ignored.

 

 

In Judge Horne's reasons for his decision he aided the Respondent's case by failing to take into account the previous warning was issued in breach of the Respondent's own contractual disciplinary procedures, and by failing to take into account the previous warning was issued in breach of Employment Law. This left the path clear for Judge Horne to then use the warning in order to bring the dismissal just about inside the band of reasonableness.

 

 

 

The Claimant subsequently made a request for Judge Horne to reconsider his decision. In that request the Claimant disclosed an email which the Respondent had given him as part of a Subject Access Request. The email showed the disciplinary outcome had been decided upon two weeks before the disciplinary hearing had taken place. In the email the Disciplinary Officer stated he was escalating the Claimant's sanction to a first and Final Written Warning.

 

The email confirmed the warning further breached Employment Law as it shows the warning was decided upon prior to any disciplinary hearing taking place and, as such, the warning was issued in 'Bad Faith' and should no longer be intact, causing the dismissal to be unfair.

 

As the Respondent was tasked with putting the tribunal bundle together, the email was given to them as part of the Claimant's evidence. However, the Respondent failed to include the email in the bundle and it was never disclosed to the tribunal. Because there was knowledge of the email at the tribunal, Judge Horne would not allow it to be entered as new evidence for his reconsideration.

 

However, the law as it stood still allowed Judge Horne to take the email into consideration if he chose to but, he refused to do so because:-

"In my view the need for proportionality, the public interest in finality of litigation, and the need to avoid delay and expense, outweigh the general desirability that the tribunal should consider all relevant evidence. The interests of justice do not favour reconsideration"

Judge Horne once more aided the Respondent by this time allowing them to get away with removing evidence from the bundle which showed the Final Written Warning was issued in bad faith!

 

 

More serious issues raised by the removal of the email were; the Respondent had deliberately tampered with evidence by removing it, and the Respondent had then deliberately misled the Court in relation to the Final Written Warning being issued in good faith. Whether or not Judge Horne would allow the email as evidence for a reconsideration of his judgement was one issue; another issue was Judge Horne had just been made aware of the Respondent committing serious offences in order to pervert the course of justice.

 

Judge Horne once more aided the Respondent by not acting on evidence that confirmed the Respondent had prevented justice from being served.