Judge Horne applied inconsistent and 'Double Standards' which aided Respondent

 

Example 1:

 

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.

 

The 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.

 

Judge Horne 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.

 

 

 

 

Example 2:

 

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 that to be fact 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".

 

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'. Judge 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?

 

A responsible person means different things in different companies and doesn't necessarily mean trained; they are more likely to be someone who has shown some common sense and can deal with things in a responsible manner. Even if the Respondent did have 'responsible persons' on shift, it doesn't necessarily mean those persons were trained. Therefore, without any enquiries into previous staff training or responsibilities, it would not be reasonable of the Respondent to believe that a 'Responsible Person' in their company would be of the same standard as a 'Responsible Person' in the previous company, or any other company for that matter. Judge Horne ignored that 'Responsible Persons' was never put to the Claimant during the disciplinary process therefore he was not given a fair chance to meet the argument.

 

Judge 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 he had first-hand knowledge that managers did not sleep over; Judge Horne was also aware that during the Claimant's last few months under the previous owners he was promoted to Night Supervisor, interviewed the nights team for their jobs, selected the ones he wanted, was in charge of their training, and was in charge of the night shift rota; so for a time the Claimant did pick and choose the 'persons' he had on night shift and knew as fact that the night team had not done any management training or enhanced training. 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.

 

 

 

Example 3:

 

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 his condition and 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 this 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 entire 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 this evidence at tribunal despite them not relying on it during the disciplinary process.

 

Judge Horne aided the Respondent by applying double standards when it came to allowing evidence.

 

 

 

Example 4:

 

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 unresolved.

 

The issue was not raised at the disciplinary, or put to the Claimant, or relied on by the Respondent to dismiss the Claimant.

 

The 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 evidence at tribunal despite them not relying on it at disciplinary or appeal.

 

 

 

Example 5:

 

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.

 

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.

 

 

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 (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 Andy was a Trainee GSM, Judge Horne applied different standards to the Respondent and Claimant with regard the staff rota.

 

 

By applying different standards, and applying the same standard inconsistently, Judge Horne clearly aided the Respondent.