In relation to the 2015 Disciplinary Process:
- Peninsula was aware, before any investigation had taken place, that Disciplinary Officer had already got involved and held a pre-determined view that Claimant's actions had 'left the hotel without appropriate management which was a health and safety breach and left the hotel vulnerable'. It hadn’t been investigated or established that the staff left on site were inappropriate. It hadn’t been investigated or established that Claimant’s actions breached health & safety. It hadn’t been investigated or established that Claimant’s actions left the hotel vulnerable. In fact, no investigations had taken place in order for the Disciplinary Officer to come to such conclusions, yet he still jumped to those conclusions. In order to dismiss Claimant, all that had to be done now was make the disciplinary process fit with this pre-determined narrative.
- Peninsula was aware, as in the previous disciplinary, that facts relied on were not investigated or established - ie the Disciplinary Investigation had not established any insufficiency with regard the cover staff put in place by the Claimant, or established that any risk to health & safety had occurred by putting these staff in place. Nor had it been investigated or established that the Claimant himself was sufficient to be left in charge. It hadn’t even been established which staff had done which training. None of these so called 'FACTS' had been investigated or established, but they would later be relied on to dismiss Claimant.
- Peninsula again approved breaches to the Disciplinary Procedures. Claimant was only supposed to be disciplined after careful investigation of the facts, as prescribed by procedures. Again, the only so called ‘FACTS’ put forward were the Disciplinary Officer's own pre-determined assumptions, which were not supported by the investigation but, were still approved by Peninsula regardless.
- Peninsula again approved breaches to the Claimant's employment contract; as mentioned in previous post, the disciplinary procedures themselves were part of that contract, therefore any breach to those procedures was a breach of the contract.
- Peninsula again approved breaches to the ACAS Code Of Practice. Respondent was supposed to provide all evidence to Claimant prior to a Disciplinary Hearing. Again, the alleged evidence which Respondent relied on was never provided to Claimant; they stated the cover staff was insufficient, that health & safety and the business was put at risk, but they provided zero evidence in support of these things. They never even provided evidence that Claimant himself was sufficient to be left in charge. The alleged evidence to all those things was in the form of the Disciplinary Officer's pre-determined assumptions; which he would only disclose later to ET in the first instance without them being investigated, verified or established. Despite Respondent relying on evidence that was never investigated or provided to Claimant, Peninsula approved the disciplinary hearing and subsequent dismissal (that’s even after Peninsula themselves stated dismissal is not something they would endorse).
- Peninsula approved that the Disciplinary Hearing be used as a fishing expedition to find some form of evidence against Claimant. Why did they do this? Oh yes…because the investigation had NOT supported or established any of the so called facts they were relying on to dismiss Claimant. Peninsula/Respondent didn’t let the lack of FACTS hold them back…they just escalated the disciplinary process regardless and hoped something would turn up that could be used against Claimant. If no real facts could be established…still not a problem because, as the alleged facts themselves were not being verified, they could simply invent any facts to fit the above mentioned narrative and run with those!!!
- Peninsula gave their recommendation for the sanction 8 days prior to the reconvened Disciplinary Hearing. They recommended an extension to the written warning that was already in place (the warning they knew had been issued in bad faith); guess extending this warning might avoid anyone looking too much into it and discovering it was issued in bad faith. Whatever their reasons for the recommendation, the fact they made it 8 days prior to the end of the disciplinary hearing means they had pre-determined that the Claimant was guilty and that he would be sanctioned in this instance.
- Peninsula put to Respondent that Claimant could have made a judgement call and got it wrong. The Claimant himself even stated that he made a judgement call based on everything he knew at the time. This however did not fit in with Respondent's narrative so it was never discussed, considered, or mentioned again. As shown by the notes of the entire disciplinary process (which will be published later in this blog with all relevant documents), the aim was to find anything which supported dismissal; anything that didn’t support dismissal was instantly shut down.
- Peninsula approved a second fishing expedition. Why did they need a second one? Oh yes…because, despite an investigation and a first fishing expedition, there were still NO facts established which they could use to dismiss Claimant. There were not even any procedures in place for the Claimant to follow and therefore, in Peninsula's own words, 'nothing in handbook to hang this on'. You’d think at this point Peninsula would have advised further investigation be carried out to establish the facts of the case before completion of the disciplinary hearing, or maybe concede that no facts could be established in support of the Respondent’s narrative because the Claimant had not committed a disciplinary offence; but they didn’t do either. Instead they just carried on in the hope something would turn up which supported the Respondent’s narrative; but it never did.
- Peninsula drafted the dismissal letter, at the Respondent's request, a day prior to completion of the reconvened Disciplinary Hearing. Respondent contacted Peninsula looking for a pre-drafted dismissal letter – not an ‘Outcome’ letter, but a ‘Dismissal’ letter, which itself indicated dismissal had already been pre-determined. Peninsula then drafted the actual dismissal letter which respondent accepted, all in the day prior to the reconvened disciplinary hearing. Peninsula was fully aware the outcome was now pre-determined because they informed Respondent that when putting the dismissal letter together they "shouldn’t make it look like decision was pre-conceived".
- Peninsula approved use of a previous warning which they knew was issued in bad faith. Court of Appeal had already confirmed that an employer cannot take into account a previous warning when considering the dismissal of an employee if the warning in question was issued in bad faith. Any employer who does so would be acting unreasonable and any dismissal as a result would be unfair. Peninsula had already told Respondent that they "Do not think it will be a safe dismissal" in regard to using the warning, and further told Respondent that it "Smacks of an unfair dismissal" and that "Dismissal is not going to be something I would endorse" (of course they conveniently didn’t disclose any of this to ET when defending the dismissal). Peninsula were fully aware of Employment Law regarding the use of a warning issued in bad faith, they were fully aware that this warning was issued in bad faith, and it seems they made a little attempt to dissuade Respondent from using the warning to dismiss the Claimant, but in the end, despite knowing the warning was issued in bad faith and that using it would be unreasonable, Peninsula still took the chance and approved its use regardless.
- Peninsula approved, a day prior to completion of reconvened disciplinary hearing, that their client could phone the Claimant and inform him of the dismissal. They advised it was fine to give the outcome over the phone to the Claimant and to then follow that call up by sending out the dismissal letter which they had already drafted. This approval was again given a day prior to completion of the Disciplinary Hearing, which shows the dismissal was pre-determined.
- Peninsula approved of the Disciplinary Officer hearing the disciplinary, despite him being the only witness against the Claimant. The investigation did not establish any of the so called facts relied on to dismiss the Claimant; those alleged facts came solely from the Disciplinary Officer's own head without them being verified, established or having any supporting evidence disclosed. The only witness against the Claimant was the person hearing the disciplinary. At some point during the disciplinary process Peninsula realised that no facts against Claimant had been established – this was shown by them initiating two fishing expeditions, and by their own admission that there was 'nothing in handbook to hang this on'. With no facts established, and the only alleged facts coming solely from the Disciplinary Officer himself, that made the Disciplinary Officer the only witness against the Claimant. Peninsula should have realised that it was a conflict of interests for a Respondent witness to hear a disciplinary on behalf of the Respondent. However, they had already drafted the dismissal letter and given it to Respondent for use; so they simply stood back and allowed the process to carry on.
- Peninsula was fully aware that the Disciplinary Officer could not be impartial when hearing the disciplinary; not only because he was a witness against the Claimant, but also because this person held a pre-determined view of the Claimant's actions, had already shown a bias attitude against Claimant in previous disciplinary hearing, and, had refused to give the Claimant a witness statement prior to this disciplinary in order for Claimant to see ALL the evidence against him.
- Only after Claimant was dismissed, and requested an appeal, did Peninsula advice Respondent to check the facts concerning specific 'evidence' they relied on ie the 'October incident' from 2014. This issue was relied on to dismiss the employee and, only after dismissal, did Peninsula think it might be a good idea to see if it actually happened.
- Peninsula approved that Respondent withhold specific evidence from Claimant which he had requested in order to prepare for his appeal. As stated in a previous post, Peninsula were well aware that the Claimant's 'conduct during the process' was taken into account when making the decision to dismiss him; it is clearly stated in the dismissal letter. Respondent didn't disclose to the Claimant what the conduct in question was. The Claimant requested information about this alleged conduct for his appeal but Peninsula advised Respondent not to make any comment about it; in doing so Peninsula approved the withholding of evidence which was relied on to dismiss Claimant. Peninsula went on to tell Respondent what the alleged conduct in question was, which was strange because Peninsula never sat in at any of the hearings, and the dismissal was supposed to be for the Respondent’s reasons; now we find out Respondent added this reason to the outcome letter in order to justify dismissal but had no idea what the grounds were until Peninsula told them at appeal stage (that’s one reason given in the outcome letter to justify dismissal which was never investigated or put to Claimant during the hearing – his alleged conduct during the process).
- Peninsula was fully aware that the Disciplinary Appeals Officer could not be impartial when hearing the appeal because he too had already shown himself to be bias against Claimant in the previous disciplinary process – if you recall, this officer got involved prior to any investigation and tried to push for dismissal without a disciplinary hearing taking place.
- Peninsula was fully aware that ALL STAFF at the hotel had received training on the fire alarm panel; it was clearly stated in the appeal notes which were disclosed to Peninsula.
- Peninsula approved use of an alleged incident from Oct 2014, in order to justify dismissal, despite them knowing the incident did not take place. It was clear to Peninsula that this incident did not happen and was never established as fact because they stated to Respondent "why did we rely on it if it didn't happen please?". Despite Peninsula having major concerns regarding the October 2014 issue, they still approved its use in dismissing Claimant and in upholding the dismissal because; 1) they had no procedures in place to "hang this on" and, 2) they didn’t want to let the issue go because, in their own words, if they let it go it would “fundamentally weaken our case”, (that’s now two reasons given in the outcome letter to justify dismissal which were never investigated or put to Claimant during the hearing – his alleged conduct during the process, and the alleged Oct 2014 incident. We now know the latter didn’t even take place).
- Peninsula was fully aware that Respondent was inconsistent regarding alleged company procedures they were relying on to justify dismissal. First the Respondent told Peninsula that "company procedures state there has to be a guest services manager on every shift". Unfortunately for Respondent, the Claimant requested copies of the relevant company procedures for his appeal; at which point Peninsula/Respondent confirmed with each other that there were "no written procedures currently in place". So they shifted the blame from Respondent's lack of procedures to, the Claimant not needing procedures because he had prior experience - which is when the above incident from Oct 2014 was born. After going along with the alleged Oct 2014 incident, Respondent then changed their story again - this time they told Peninsula that "there is a document that says need GSM between 7 - 11, however [Claimant] won't have seen this". Respondent’s stance had gone from:- 1) procedures were in place, to 2) no procedures were in place, to 3) procedures were in place but Claimant wouldn't have known about them because he wouldn’t have seen the documentation. This was not good for Respondent as it showed just how disorganised they were; which if disclosed to ET would benefit Claimant’s case because, if Respondent didn’t know whether or not procedures were in place, then how could they expect Claimant to know whether or not procedures were in place. Peninsula/Respondent put the issue of procedures to one side, and then ran with the alleged Oct 2014 incident to establish Claimant had prior experience which would negate the need for procedures.
All the actions in this recap, and in part 1, happened internally. Up till now, no one has actually misled a Court of Law. There was still plenty of time to reach a fair outcome by going back and correcting all of the breaches from both the disciplinary processes.
Next post will be 'Another Recap part 3'