Judge Horne failed to take into account the previous warning was not issued in accordance with company procedure

 

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

 

 

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).

 

Judge Horne was also aware that one particular allegation had been changed from what was stated in the Disciplinary Invite letter to, what was stated in the Disciplinary Outcome letter. This new allegation had not been investigated or brought to the Claimant’s attention as part of the disciplinary proceedings. 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

 

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. At no point did Judge Horne query why the Claimant believed the warning was issued unfairly however, that ought to have become clear to Judge Horne on reading the Respondent’s contractual disciplinary procedures along with the investigation and disciplinary notes.

 

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’. From that statement we can conclude, had there been no live final written warning, it would not have been reasonable to dismiss the Claimant. 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. But the Respondent issued the warning contrary to their own disciplinary Procedures; which Judge Horne conveniently ignored.

 

 

Judge Horne aided the Respondent's case by failing to take into account the previous warning had not been issued as prescribed by the Respondent's own disciplinary procedure, despite the Claimant stating several times the warning was issued unfairly, and despite Judge Horne himself being aware the warning was not issued as prescribed by the Respondent's own disciplinary procedure. This left the path clear for Judge Horne to take the warning into account and 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 was given in bad faith and should therefore 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 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 which the email raised were that the Respondent had deliberately tampered with evidence by removing it, and that the Respondent had committed perjury at tribunal by knowingly making false statements in relation to the Final Written Warning being issued in good faith. Whether or not Judge Horne would allow the evidence for a reconsideration of his judgement was one issue; another issue was what should be done now Judge Horne had 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 committed serious offences which prevented justice from being served.