Judge Horne disregarded the Claimant's medical condition

 

According to ACAS, the investigator should look for evidence that supports the allegations as well as evidence that undermines the allegations. The Respondent is documented several times as stating they were looking for mitigating evidence.

 

 

 

Judge Horne was aware, from the disciplinary minutes, the Claimant had been off sick just weeks prior to him making the decision which led to his dismissal. Judge Horne did not know the reason for the Claimant being off sick, and the Respondent conveniently omitted the reason from anything disclosed to the tribunal, but the Respondent was fully aware the Claimant was sick due to 'Work Related Stress'.

 

After the Claimant returned to work from sick leave the Investigating Officer noticed his demeanour; so much so that the Investigating Officer stated in his written tribunal statement ‘It appeared to me from [the Claimant’s] general demeanour that he was either angry or sad, certainly not happy in his work. I asked him how he was and he said it was just the stress and strain of work getting to him.’

 

Judge Horne was therefore aware the Claimant’s demeanour had been noticed prior to the shift which led to the Claimant’s dismissal and, also prior to the shift in question, the Claimant had informed the Investigating Officer that the stress and strain of work was getting to him.

 

Judge Horne was also aware, from the Workplace Stress Assessment, the Claimant was showing signs of stress at the beginning of the shift which led to his dismissal.

 

Judge Horne was further aware the Claimant suffered from high blood pressure.

 

 

 

The Investigation Officer was aware the Claimant suffered from high blood pressure and was showing signs of stress because it was the Investigation Officer who conducted the Workplace Stress Assessment with the Claimant at the start of the very shift which led to the Claimant's dismissal.

 

Stress alone can affect the decision making process; the Claimant had stress with high blood pressure. Whether or not the Claimant himself relied on this as mitigation, it was none the less mitigating evidence which the Respondent had full knowledge of, which was fresh in their minds and, which they alleged several times they were looking for.

 

Despite having full knowledge of the Claimant’s demeanour prior to the shift, and having full knowledge of the Claimant's condition at the beginning of his shift, the Investigation Officer failed to ask the Claimant if his condition had affected him during his shift, and also failed to consider if the Claimant's demeanour and condition played any part in the decision he made.

 

 

 

It is not clear if the Disciplinary Officer was aware of the Claimant's demeanour, but he had full knowledge of the Claimant's condition at the beginning of his shift. The Disciplinary Officer failed to ask the Claimant if his condition had affected him during his shift and also failed to consider if the Claimant's condition played any part in the decision he made.

 

 

 

It is not clear if the Appeal Officer was aware of the Claimant's demeanour, but he too had full knowledge of the Claimant's condition at the beginning of his shift. The Appeal Officer failed to ask the Claimant if his condition had affected him during his shift and also failed to consider if the Claimant's condition played any part in the decision he made.

 

Despite all three officers having full knowledge of the Claimant's condition when he started his shift, and one officer having full knowledge of the Claimant's demeanour prior to his shift, neither of them queried it or took it into consideration as mitigation.

 

 

As well as finding the Claimant was showing signs of stress at the beginning of his shift, the 'Workplace Stress assessment' also found contributing factors to the Claimants stress condition such as the Claimant was poorly managed, there was a lack of communication and consultation with the Claimant, there was a blame culture within the hotel, there was a lack of definition and organisational goals, the Claimant had poor relationships with other people (this was due to a broken trust by one of his work mates in relation to the Claimants previous disciplinary), and the Claimant had low participation in decision making (the Claimant had gone from being a decision maker under the previous owners to not being consulted on decisions at all under the Respondent).

 

 

In his reasons for Judgement, Judge Horne states 'The claimant submits that the respondent should have taken other mitigating factors into account. In particular, they should have considered the effects of workplace stress', and he went on to say 'These factors were not put forward on the claimant's behalf at the time of dismissal. I cannot say that the respondent acted unreasonably by not thinking of these mitigating factors for itself'.

 

The Claimant doesn't recall Judge Horne asking anyone if the ''Workplace Stress Assessment' was put forward as mitigation during the disciplinary process. There was nothing in the disclosed disciplinary notes to show it was put forward as mitigation but, as Judge Horne was well aware, those notes were incomplete. The Claimant is documented several times as stating the Respondent had disclosed incomplete disciplinary notes. In the undisclosed notes, which Judge Horne did not see, the Claimant is clearly shown raising the 'Workplace Stress Assessment' as mitigation - unfortunately the Claimant failed to remember this during tribunal proceedings and Judge Horne did not enquire about the missing notes.

 

Further, the Respondent was professionally represented throughout the disciplinary process and while the Respondent themselves may have failed to think of this mitigating factor, the Employment Law Consultancy firm who was advising the Respondent and who were also fully aware of the Workplace Stress Assessment findings had no excuse for failing to think of this as mitigation.

 

 

 

The Claimant then raised the issue again when he made a request for Judge Horne to reconsider his decision. The Claimant used the evidence in the bundle and compared the consequences of his own actions with those of the Investigation Officer; the Claimant’s actions were said to have placed “the security and safety of the guests at risk” and left the staff on site “unsupported and vulnerable in the event that anything happened”. The Claimant stated that in leaving him alone on site when he had high blood pressure and stress also placed “the security and safety of the guests at risk” and left him “unsupported and vulnerable in the event that anything happened”.

 

In response Judge Horne stated The claimant now suggests that the respondent acted inconsistently by, on the one hand, disciplining the claimant for leaving the hotel with inadequate cover and, on the other hand, allowing [the Investigation Officer] to leave the hotel under the supervision of the claimant who was suffering from stress. I do not recall this point being made at the hearing. Had I understood this to be the claimant's case, my judgment would have remained the same. At no stage during his meeting with [the Investigation Officer] did the claimant suggest that he could not safely look after the hotel.

 

In making that statement Judge Horne has passed the Respondent's responsibility, to act on the findings of the Workplace Stress Assessment, over to the Claimant and in doing so Judge Horne ignored several issues 1) The Respondent was conducting an assessment of the Claimant; not the other way around. 2) The Respondent assessed the Claimant as showing signs of stress and, as a duty of care to the Claimant, the Respondent was legally obligated to act on those findings. 3) The Respondent did not act on those findings by seeking medical advice before leaving the Claimant on his own. 4) At no point did the Respondent ask the Claimant if he felt unable to safely look after the hotel. 5) As the Claimant was suffering from stress, and stress affects decision making, it would not have been prudent for the Respondent to allow the Claimant to decide if he was safe to look after the hotel. That was the point of the Workplace Stress Assessment and was something which the person conducting the assessment should have decided after seeking appropriate medical advice.

 

Judge Horne implies he would not have taken the 'Workplace Stress Assessment' evidence into account because the Claimant had not relied on it at investigation stage. Yet, Judge Horne took into account Respondent verbal evidence regarding the condition of one member of the cover staff, evidence which the Respondent had not disclosed or relied on during the entire disciplinary process. This comes across as 'Double Standards' being applied (which is dealt with in another section on this site).

 

 

By disregarding the Claimant’s condition, despite the Respondent having full knowledge of it at the time, Judge Horne aided the Respondent’s case because he allowed them to ignore known mitigation which most likely affected the Claimant's decision making process.