The Claimant stated he was told by the night team
that, since the Respondent took over the hotel, managers do not always
sleep-in when he is off work. On one specific night, which the Claimant
referred to at his disciplinary appeal and at tribunal, he stated he had
received a text message from a member of the night team stating that no
one was sleeping-in that night because there were only 12 guests in the
hotel. Despite being informed of this by the night team, Judge Horne
deemed the Claimant would not know this as fact because, by definition,
he was not there.
The Investigation Officer stated that nights at the
hotel were always covered by a sleep-in manager. You must remember that
the Investigation Officer was not at the hotel every day and did not
conduct any enquiries into sleep-in managers in order to come to such a
conclusion. Using the standard Judge Horne
applied to the Claimant, the Investigation Officer would not know that
to be fact because, by definition, he was not always there.
However, Judge Horne didn't apply the same standard to the Investigation
Officer; instead he simply accepted the Investigation Officer would know
this as fact even though he wasn't always there.
Judge Horne applied
one standard to the Claimant and a different standard to the Respondent.
On the one specific night raised by the Claimant,
where he had received a text message saying no one was sleeping-in, he
also disclosed a report to the tribunal which listed the names of
everyone in an occupied room, of which none were hotel staff.
Investigation Officer stated under oath that he was in fact sleeping-in
that night. This 'fact' had not been disclosed to anybody when the Claimant
raised the issue during the disciplinary process because the
Investigation Officer had never disclosed it on his own accord and,
because the Respondent failed to follow up on the issue.
It was 14 months later
at tribunal, when the Claimant was no longer in a position to verify
Respondent statements, that the Investigation Officer conveniently
disclosed to the court how he had been at work that day and was
doing stock orders. The Investigation Officer went on to admit that, contrary to
fire safety regulations, he was in an 'out of order' room which did not
show up on the hotel system and therefore did not show on the disclosed
report. Further to that, the staff rota in the bundle, which was agreed
by all parties, showed it was the Investigation Officer's day off.
In Judge Horne's reasons for his
decision he overlooked that the
Respondent had not questioned a witness named by the Claimant who could
verify that no manager slept-in on a specific night.
Judge Horne simply accepted the
Investigation Officer's statement as true despite the conflicting
documentary evidence and despite the Respondent failing to follow up on
the issue at the time.
The Claimant stated that managers had not always
slept-in under the previous owners. The Claimant was in a non-management
role for over 4 years with the previous owners and worked numerous night
shifts when there were no sleep-in managers.
Using Judge Horne’s own standard, the claimant was present at the time
therefore he would know it to be fact.
However, Judge Horne did not apply his own
standard this time; instead he simply dismissed the Claimant's statement
in favour of the Respondent's.
The Respondent stated nights at the hotel were always
covered by sleep-in managers. The Respondent was not present for the
years prior to them taking over the hotel, none of their witnesses
worked for the hotel until after the Respondent took over, and they did
not follow up on the issue by making enquiries into sleep-in managers.
Using Judge Horne's own standard, the
respondent could not know as fact that nights at the hotel were
always covered by sleep-in managers because, by definition, the
respondent was not there at the time.
However, Judge Horne didn't apply the same
standard to the Respondent, instead he simply stated
"The respondent ought to have realised that
the previous regime may not have required there to be a person with
"manager" in their job title present at all times. But it was reasonable
for them to assume that, under the previous management, the hotel always
had to be staffed by one of a limited number of responsible persons, and
that it would not have been for the claimant to pick and choose who
those persons should be".
In that statement, Judge
Horne says it was 'reasonable' of the Respondent to 'assume',
but Judge Horne fails to disclose why it was reasonable.
The Claimant was dismissed because the staff he left
in charge were not 'Managers'. The Respondent then realised they too did
not always leave a 'Manager' on site, so for
tribunal purposes they changed it to 'Duty Manager or someone trained to do those tasks'.
Horne then changed it further to 'Responsible
Persons'. In making that last
statement, Judge Horne ignored the fact that the Respondent themselves
had no provisions for 'responsible persons', so how could it be
reasonable for them to assume the previous owners had such a provision?
Judge Horne also ignored that
'Responsible Persons' and 'Duty Manager' were never put to the Claimant during the
disciplinary process therefore he was not given a fair chance to meet
Horne was aware, from the notes of the entire disciplinary
procedure, that the Claimant was not in a management role for over four
years with the previous owners and that he had first-hand knowledge of
the hotel not having sleep-in managers.
The Claimant had
first-hand knowledge, but
Judge Horne dismissed that knowledge in favour of the Respondent's
groundless 'beliefs' which would not have passed the 'Burchell' test had
it been applied.
There was documentary evidence in the bundle, in the
form of a Workplace Stress Assessment, relating to the Claimant's state of
health at the very beginning of the shift for which he was dismissed.
The Claimant was assessed as exhibiting signs of stress. The
Investigation Officer had carried out the assessment just hours before
he conducted the investigation into the Claimant. He then passed the
assessment findings to the Disciplinary Officer. The Respondent was
therefore fully aware of the Claimant's condition.
(The Claimant did raise the
'Workplace Stress Assessment' as mitigation during the disciplinary
process, unfortunately the Respondent did not disclose the full
disciplinary notes to the tribunal and the Claimant failed to recall
this point. As such, Judge Horne was not aware of this mitigation being
raised during the disciplinary process).
Judge Horne would not allow the Claimant to rely
on the 'Workplace Stress Assessment' as evidence during the tribunal process simply because he believed the Claimant
had not relied on it during the disciplinary process.
At tribunal the Investigation Officer gave verbal
evidence regarding the medical condition of the Chef; the employee left
in charge by the Claimant.
This verbal evidence was not
corroborated, had no records to back it up, was not disclosed during the
disciplinary process, was not divulged to anyone else prior
to the tribunal and, was not relied on to dismiss the claimant which can
be verified by its lack of inclusion in the dismissal letter.
Using the standard Judge Horne
applied to the Claimant, the Respondent should not be allowed to rely on
this evidence at tribunal because, they did not rely on this evidence
during the disciplinary process.
However, Judge Horne did not apply the same
standard to the Respondent; instead he let the Respondent rely on their
own unverified verbal 'medical'
evidence at tribunal despite them not relying on it during the
Judge Horne aided the Respondent
by applying double standards when it came to allowing evidence.
An issue of sleep-in managers was raised by the
Investigation Officer at investigation stage; but he did not follow
up on it and subsequently left the issue
The issue was not raised at the disciplinary hearing, or put to the
Claimant, or relied on by the Respondent to dismiss the Claimant.
issue was then raised by the Claimant at appeal stage but the Appeal
Officer merely acknowledged the issue; he too did not follow up on the
issue or make any attempt to resolve it,
and did not rely on it to uphold the dismissal.
Using the standard Judge Horne applied to the
Claimant, the Respondent should not be allowed to rely on this evidence
at tribunal because, they did not rely on this evidence at the
disciplinary or appeal hearings. However, Judge Horne did not apply the same standard to the Respondent;
instead he let the Respondent rely on this 'sleep-in manager' evidence at tribunal despite
them not relying on it at disciplinary or appeal.
According to Judge Horne, the person left in charge
by the Claimant was not listed as a 'Duty Manager' on the staff rota -
therefore he was not a Duty Manager (Judge Horne overlooked that
nobody was actually listed as a Duty Manager on the staff rota).
When it came to the Clamant:- the standard applied
was, if staff are not listed in a specific position on the staff rota,
they can't be in that position.
The other night staff were not listed as 'Duty
Managers' on the staff rota. The Respondent had also documented that the
other night staff were not managers; and then contradicted that by
saying they were 'Duty Managers'. Judge Horne simply accepted the other
night staff were duty
managers despite them not being listed as such on the staff rota.
A member of staff 'Andy' who the Respondent allowed
to sleep over when the Claimant was off work was listed as a GSA (Guest
Service Assistant) on the staff rota. At tribunal the Respondent stated
Andy was actually a 'Trainee GSM'. Andy was not listed as a Trainee GSM
or GSM on the staff rota yet, Judge Horne accepted that Andy was a
Trainee GSM simply on the Respondent's say so, without any supporting
evidence (Judge Horne overlooked that Trainee GSMs were actually
listed on the staff rota - the Respondent had already stated there was another Trainee
GSM at the hotel and that particular one was listed as a GSM on the
staff rota to identify him).
When it came to the Respondent:- the standard
applied was, if staff are not listed in a specific position on the staff
rota, they can be in that position.
In accepting the other night staff as
Duty Managers, and accepting Andy was a Trainee GSM, despite them not being listed on the staff rota as
such, Judge Horne applied different standards to the Respondent and Claimant
with regard the staff rota.
'Like with Like' comparisons!
The Claimant listed several occasions where the
Respondent had acted in such a way as to indicate they treated the
Claimant differently (we give 2 occasions below).
It was alleged the Claimant put guest health & safety
at risk by his actions of leaving the hotel without a manager. The
Claimant was investigated the same day and eventually dismissed.
It was alleged another employee had put guest health
& safety at risk by their actions of chaining and padlocking a fire
exit. No investigation took place and no dismissal occurred.
Both issues were about putting guest health & safety
at risk but Judge Horne said the Claimant was not being treated
differently because the examples were not truly 'like with like'.
It was alleged the Claimant had damaged the business
by publishing guest personal information to a few friends on social
media. The Claimant was investigated and sanctioned.
It was alleged the Respondent made public the very
same guest personal information they deemed so damaging to their
business. No investigation took place, no sanctions were given.
Both issues were about making guest personal
information public but Judge Horne said the Claimant was not being
treated differently because the examples were not truly 'like with
When it came to issues in support of the Clamant, the standard
applied by Judge Horne was: if the issues are similar but the
circumstances were different then the issues could not truly be a
'like with like' comparison.
The Respondent listed one occasion where the Claimant
had acted in such a way as to indicate he knew what to do when a manager
In 2014 the staff put on shift were not sufficiently
trained to carry out their duties and the Claimant stayed over to help
out. The Claimant was no longer in charge at the time as he had already
handed the shift over to the next manager in line.
In 2015 the next manager in line phoned in sick and
the Claimant didn't stay over to cover the absence; instead he chose to
leave staff in charge who met all the legal requirements, with one
having previous supervisory experience. As the Respondent couldn't rely
on procedures, because there were none in place, they used the previous
2014 incident as evidence to show that the Claimant knew he had to stay
over if a manager was absent.
Both issues were completely different yet, Judge
Horne accepted that these examples were truly 'like with like' and he
used them in his judgement to show the Claimant knew what to do if a
manager was absent.
When it came to issues in support of the Respondent, the standard
applied by Judge Horne was: if the issues and the circumstances were
different then it was still truly a 'like with like' comparison.
By applying different
standards, and applying the same standard inconsistently, Judge Horne
clearly aided the Respondent.