The ET stated “The claimant began to suffer from the effects of stress at work. [Investigation Officer] became concerned. On the evening of 1 January 2015, [Investigation Officer] and the claimant met for about one and a half hours to discuss the matter. There was a long discussion of the causes of the claimant's stress. Together they completed a stress risk assessment questionnaire. Predominantly, the cause cited by the claimant was workplace related: By the time the meeting ended it was after midnight. The claimant then worked his shift as normal through the early hours of 2 January 2015”.
The ET later stated “[Disciplinary Officer] did not take into account the claimant's perception of stress at work, nor was he invited to do so.”
Claimant’s ‘stress’ was addressed a day prior to the disciplinary process beginning, but Peninsula convinced ET it was addressed because Respondent was concerned for Claimant, convinced ET the ‘stress’ was merely the Claimant’s perception of stress, and then convinced ET that Claimant didn’t raise the issue of stress during the disciplinary hearing. Peninsula glossed over the Claimant’s ‘stress’ to ET and conveniently failed to mention:-
- That they were fully aware Claimant had been diagnosed by his GP as suffering from ‘work related stress’ (so it wasn’t the Claimant’s perception of stress, it was an official diagnosis of stress from a GP).
- That they were also aware Claimant suffered from extremely high blood pressure and was on medication.
- That they were also aware Claimant was off work with stress for nearly two weeks after the 2014 disciplinary hearing and, on his return to work around 17 November 2014, Respondent did absolutely nothing – not even a back to work review or welfare meeting (so no sign of Respondent having concern for Claimant there).
- That they were also aware on 13 December 2014, almost 4 weeks after Claimant returned to work, Respondent had still done absolutely nothing. It was then Claimant requested Respondent conduct an ‘Occupational Health Assessment’ on the advice of his GP because the GP believed Claimant’s "health condition could have a substantial and long term adverse effect on my ability to carry out day-to-day activities, and needs to be assessed under the disability procedures".
- That they were aware it took a request from the Claimant before any assessment was carried out (so no sign of Respondent having concern for Claimant there).
- That they were also aware it took another 3 weeks, from Claimant’s request for an ‘Occupational Health Assessment’, for Respondent to actually act on it by conducting the lesser ‘Workplace Stress assessment’ (so no sign of Respondent having concern for Claimant there. Let us not forget, Respondent allegedly had concerns about hotel being without a manager and acted upon that within the hour; yet it took Respondent seven weeks, and only after being prompted by Claimant, to act on any concerns they allegedly had about Claimant’s health).
- That they were also aware the ‘Workplace Stress assessment’ was carried out on 1 January 2015, at the start of the very night shift that led to Claimant’s dismissal, and it assessed Claimant as showing signs of stress, there and then, while he was sat down in a calm environment.
- That they were also aware Respondent failed to act immediately on the findings of the assessment or seek medical advice; Respondent simply left Claimant alone on shift knowing he had recently been off sick with stress (which affects decision making), knowing he suffered from extremely high blood pressure (which is aggravated by stress), knowing he was on medication for the blood pressure (medication which listed blurred vision as just one of the side effects – guess Respondent didn’t think good vision was required for someone in charge of a fire evacuation), knowing his condition could have a substantial and long term adverse effect on his ability to carry out day-to-day activities (which could affect his ability to do his job), knowing Respondent made no effort what so ever to hold a welfare meeting with Claimant to assess if his condition could affect his ability to do his job (so much for Respondent being concerned for Claimant), and now knowing he had just been assessed as showing signs of stress (which would aggravate the blood pressure further). So, no sign of Respondent having concern for Claimant when it came to leaving him alone on site, without any support, in charge of an occupied hotel. Respondent not even concerned about the additional stresses a fire evacuation might have on Claimant’s condition if he had to deal with one alone and unsupported – which is strange because Peninsula convinced ET that Respondent fire safety as a high priority!
- They were also aware Respondent never had any further meetings with Claimant regarding his condition, despite agreeing to monitor Claimant and meet with him regularly to review the issue (so no sign of Respondent having concern for Claimant there, or maybe Respondent had decided on the dismissal much earlier than is documented and saw no reason to monitor him if he wasn’t going to be there much longer).
- They were also aware that the night after the assessment, 2 January 2015, Respondent conducted an investigation into Claimant at beginning of his shift, then again left him on his own in charge of the hotel without any support, or any concern for the additional stress they had just placed on Claimant (so no sign of Respondent having concern for Claimant there).
- As for Claimant not inviting the Disciplinary Officer to take the stress into account; Peninsula read the full notes of the disciplinary hearing and were aware that Claimant did raise the issue of stress at disciplinary stage and that the Disciplinary Officer completely ignored Claimant on this and never responded or addressed the issue; which can be seen in the full disciplinary notes. However, the ET didn’t receive the full disciplinary notes; Peninsula only disclosed incomplete notes which conveniently made no mention of Claimant raising the issue of stress (Claimant stated several times that the disciplinary notes were incomplete, but no one took any notice of him and Peninsula took full advantage of that fact).
‘the stress being the Claimant’s perception (and not something which had been diagnosed by a GP)’ and ‘Respondent being concerned about the Claimant’ and ‘Respondent NOT being invited by Claimant to take account of the stress’ was all taken into account when the ET made their decision in favour of Respondent.
The ET stated “None of the three cover staff had received the additional fire evacuation training”.
Peninsula convinced ET that the cover staff put in place by Claimant had not done the alleged advance fire safety training. However, that contradicted Respondent’s own statements.
- At appeal hearing, in regard to the fire panel, the Appeal Officer is documented as stating that “hentland out service contractor did a full training session and this was passed on to all staff”.
- At ET the Respondent stated that the only people trained on the fire panel were ‘those who knew how to organise a fire evacuation’.
From those two Respondent statements it would be reasonable to conclude that ALL staff knew how to organise a fire evacuation because ALL staff had been trained on the fire panel; which in turn would mean there was no fire safety issue when Claimant left the cover staff in place.
However, if ALL staff knew how to organise a fire evacuation, that would contradict the story Peninsula was putting to ET. So Peninsula changed the particulars of who had done this alleged training and convinced the ET that only certain staff had received fire panel training, which meant only certain staff knew how to organise a fire evacuation. Yes, you guessed it again, there were no training records disclosed to support that fire panel training, or additional fire safety training, actually existed; not one certificate was disclosed to show that any employee had taken part in, or completed, the alleged training.
‘the existence of additional fire evacuation training’ and ‘only certain people taking part in additional fire evacuation training’ was taken into account when the ET made their decision in favour of Respondent.
The ET stated “From the rotas available to me in the bundle, [the Chef] was never recorded as being the "duty manager"; when he was on shift, there was always another manager or GSM present at the hotel”.
It came as no surprise to Claimant that the Chef was never recorded as a ‘Duty Manager’ because the rotas didn’t record Duty Managers on them. ‘Duty Manager’ was something that was never put to Claimant and was never raised by Respondent during the entire disciplinary process, but was now something they were relying on at ET. Somehow Peninsula convinced ET that the rotas recorded ‘Duty Managers’.
Peninsula also convinced ET that when the Chef was on shift, there was always another manager or GSM there too; not forgetting that Peninsula claimed that ALL managers and GSMs were fully trained. The disclosed rotas do confirm a manager or GSM was on shift with the Chef, but only for the days they actually covered. However, some of the days covered by the rotas show the GSM on shift was the same GSM who Peninsula had been told by Respondent was new to the role and NOT trained. Peninsula used the fact that this particular GSM was on shift to support their argument that there was always a trained manager on shift; but then Peninsula failed to inform ET that this particular GSM wasn’t trained; the fact she wasn’t trained supported the Claimant’s case.
‘staff rotas recording Duty Managers’ and ‘trained GSMs being on shift with the Chef’ was taken into account when the ET made their decision in favour of Respondent.
The ET stated “In response to the request for the procedures requiring management presence, [Disciplinary Officer] replied: "You have asked for company procedures regarding management cover. You will be aware from your lengthy experience in the role that there are no written procedures in place to send out to you"”.
When Respondent took over the hotel, Claimant was a few months into his Night Supervisor training. Respondent never continued that training; instead the training just stopped while the hotel was being refurbished. Months later the Respondent invited ALL staff to apply for GSM roles of which the Night Manager was one such role. The Claimant applied for the Night Manager role and, without completing his existing training, without undergoing any night management training, without any interview being conducted, and without any assessment as to his suitability for the role, the Respondent appointed Claimant as Night Manager. Peninsula convinced ET that Claimant’s 3 months of unsupervised and untrained experience as Night Manager, without any procedures in place, meant he had ‘lengthy experience’ in the role and knew what to do.
In relation to the 2015 disciplinary hearing, the ET stated “During the course of the meeting (although it is not entirely clear on which date) the claimant told [Disciplinary Officer] that [the other night staff] had received enhanced fire training prior to the respondent taking over the hotel”
Peninsula had read the disciplinary notes from both days, something they would have to do in order to give advice on the issue, so they were fully aware that nothing was recorded in either set of notes about Claimant saying any such thing – which explains why Peninsula couldn’t give the ET a specific date on this alleged statement. Yet, Peninsula put to ET as fact that the Claimant had stated the night staff had done enhanced fire safety training, despite it never being documented in either set of disciplinary notes (Again, Peninsula relying on something at ET that was never investigated, never established, never put to Claimant during the disciplinary process, and never documented. Also bear in mind that the alleged enhanced fire safety training was not a requirement under the previous owners so Claimant had no reason to state the night staff had done such training, and Respondent had not reviewed training records from the previous owners – they were simply making groundless assumptions).
A firm regulated by the Solicitors Regulation Authority is forbidden from allowing information, which they know or suspect is false, to be put forward as a truth to the Court ie that Claimant made a statement regarding staff training during disciplinary hearing; when no such statement was recorded in the disciplinary notes – but Peninsula are not regulated by the SRA.
‘Claimant stating to Disciplinary Officer that the other night staff had done enhanced fire safety training’ was taken into account when the ET made their decision in favour of Respondent.
The ET added “Following the meeting [the Disciplinary Officer] set about making his decision”.
And here it is again; Peninsula once more convinced ET the sanction was decided upon after the disciplinary hearing had taken place.
However, Peninsula failed to inform the ET that:
- they had already drafted THE dismissal letter, at Respondent’s request, and handed it over to Respondent a day prior to the disciplinary hearing being reconvened (This wasn’t a template letter, this was the actual letter issued to Claimant where dismissal had already been decided upon, reasons for dismissal stated, and the letter dated 29 January 2015; it made no reference to anything discussed in the reconvened hearing which was held on 29 January 2015 but then how could it as the dismissal letter was written the day before – this all shows dismissal had been determined prior to the reconvened hearing. A draft dismissal letter was the only letter requested because dismissal was the only outcome being considered, and had already been decided on).
- on handing over the dismissal letter Peninsula confirmed with Respondent that they could ‘telephone the outcome following the meeting with dismissal letter to follow afterwards’ (as the dismissal letter was going to follow the outcome phone call on 29 January 2015, that is again evidence dismissal had been decided upon).
- on handing over the dismissal letter Peninsula also advised about not making the dismissal look preconceived (which shows Peninsula knew the dismissal had been pre-determined).
The decision to dismiss Claimant had already been made, at very least, a day prior to the completion of the disciplinary hearing, but Peninsula convinced the ET that the decision to dismiss Claimant was made after the reconvened disciplinary hearing.
A firm regulated by the Solicitors Regulation Authority is forbidden from allowing information, which they know or suspect is false, to be put forward as a truth to the Court ie that the decision to dismiss was made after the disciplinary hearing; when they knew full well the decision had been made a day earlier – but Peninsula are not regulated by the SRA.
‘the sanction being decided upon after the disciplinary hearing, and therefore in good faith’ was taken into account when the ET made their decision in favour of Respondent.
Peninsula now have a history of knowing sanctions have been pre-determined, of giving approval to issue those pre-determined sanctions, and of failing to disclose to ET that the sanctions were pre-determined – and that’s just concerning this one case! Does make you wonder just how many other times they have done this!!
The ET again stated in relation to advanced fire safety training “[The other night staff] had been trained in how to operate the fire panel and how to organise an evacuation. This training was, in [Disciplinary Officer’s] opinion, quite different to the basic online fire safety training that had been given to the three cover staff. He was aware that [the other night staff] had had the additional training because he had been present when some of it was delivered and because the claimant had informed him during one of the meetings that they had attended such training”.
- Again, despite the Appeal Officer stating at Appeal Hearing that training on the fire panel had been passed on to ALL staff, which by Respondent’s own verbal testimony meant ALL staff had done advance fire safety training, Peninsula convinced the ET that this training had only been passed on to certain staff.
- And again, despite Disciplinary Officer stating at disciplinary hearing that it was the Claimant who trained the other night staff, Peninsula convinced the ET that it was the Disciplinary Officer who trained the other night staff and that Claimant wasn’t aware of this training because it was done on his nights off.
- And once more, despite nothing being documented in the notes of the entire disciplinary process, Peninsula convinced the ET that Claimant had informed Disciplinary Officer that the other night staff had done advanced fire safety training. This conflicted with Peninsula’s other statement that the training was done on Claimant’s night off; which by definition meant Claimant wouldn’t know if training had been conducted so wouldn’t be able to state if the other night staff were trained or not.
- And not forgetting the fact that, in spite of a Disclosure Order being in place from the ET, there was not one piece of supporting documentary evidence disclosed to support that this advanced fire safety training existed, let alone that anyone had done the alleged training.
These were all things relied on by Peninsula to justify the dismissal at ET; but none were investigated, or established, or put to Claimant during the disciplinary process. None of them had any supporting documents. Yet Peninsula put them forward as true facts to the ET; which the ET then took into consideration when making their decision in favour of the Respondent.
The ET further stated “[The Disciplinary Officer] considered that, when there was a shortage of cover, the claimant knew that he had to telephone a manager to arrange a replacement and to stay on the premises until the replacement had arrived. Evidence of such knowledge was, in [The Disciplinary Officer’s] opinion, to be found in the way the claimant had acted in the past. [The Disciplinary Officer] put this point to the claimant in general terms at the disciplinary meeting as part of a monologue to which the claimant did not respond. He had a particular example in mind: it related to the events of the morning of 25 October. As I have already described, that was due to a shortage of kitchen staff. It demonstrated that the claimant was aware of different options that he had when there was a shortage of staff in a particular area. It did not however demonstrate awareness on the claimant's part that there always had to be a manager present on the premises”.
- As mentioned in an earlier post, there was no staff absence, which was confirmed by the report of the day; the staff put on the rota all turned up on time but were simply not trained to do their jobs – Respondent even admitted to Peninsula (but conveniently didn’t tell the ET) that the Manager they put on shift that morning was new to the role and not trained. That now meant everyone put on the rota by Respondent, for that particular shift, was not trained to do the jobs they were there for. Yet, Peninsula convinced the ET that the manager on shift was trained and that the remaining ‘untrained staff turning up for their shift’ was in fact the same as ‘a staff shortage caused by staff not turning up for their shift’.
- When the Claimant was dismissed, the Disciplinary Officer had in mind the 24 October 2014 and a manager absence – we know this as FACT because he clearly stated this in the dismissal letter as justification for the dismissal despite him knowing it had never been investigated or established. He also referenced this instance several times in his written statement to ET even though he knew it was false because, by then, it had been established that the Claimant wasn’t in work at the time!!! Yet, despite 24 October 2014 and a manager absence being documented by the Disciplinary Officer in his reasons for dismissal, Peninsula somehow manged to convince the ET that, when the Disciplinary Officer dismissed Claimant, he really had in mind the morning of the 25 October 2014 and a kitchen staff absence (which coincidentally was the uncorroborated version relied on by the Appeal Officer and, if true, also confirmed that Respondent had no examples of Claimant having experience of a manager absence)!!
Again, none of these things were investigated, established or put to Claimant during the disciplinary process, yet Peninsula put them forward as true facts to the ET; which the ET then took into consideration when making their decision in favour of the Respondent.
The ET continued “Another factor that influenced [Disciplinary Officer’s] decision was one that he did not share with the claimant. [The Chef] had previously occupied a "front of house" role but had asked to be relieved of that responsibility and placed in the kitchen. The reason for that request had been some personal problems of which [Disciplinary Officer] and [Investigation Officer] were aware. These problems, in [Disciplinary Officer’s] view, made it hard to have confidence in [the Chef’s] ability to be left in charge of the hotel.”
Let’s put this into some context; the Chef wasn’t just placed in the kitchen, he was placed in charge of the kitchen unsupervised – which is the most dangerous place in the hotel as it deals with gas, open flames, electric, sharp equipment, food hygiene, health and safety, and fire safety. The mere fact the Chef dealt with gas and open flames meant it was reasonable to believe he had a higher standard of fire safety training then those that didn’t work in the kitchen.
According to Peninsula, the Chef’s alleged personal problems (of which no evidence or statement from the Chef was ever disclosed to support these personal problems existed) meant Respondent had no confidence in the Chef standing behind reception, taking phone calls, dealing with guests and maybe having to deal with a fire evacuation.
But, the Chef’s personal problems didn’t affect the Respondent’s confidence in him being unsupervised in charge of the kitchen, unsupervised using gas and open flames, unsupervised using electrical equipment, unsupervised using sharp equipment, unsupervised making sure all the food met hygiene standards, and unsupervised if he had to deal with a fire evacuation (we know the Chef was unsupervised because Peninsula also convinced ET that Guest Service Managers were not the Chef’s line manager – which meant when a GSM was the most senior staff on site, they had no authority or responsibility over the Chef; he was left to his own devices)!
Not forgetting that Respondent failed to inform Claimant that the Chef allegedly had personal problems that could affect his ability to do certain jobs. According to Respondent, Claimant was responsible for finding cover staff; so you’d think Claimant would have been given all relevant staff information in order for him to do that part of his job correctly. Respondent didn’t need to disclose details of the Chef’s problem to Claimant, all they had to say was the Chef was unsuitable for certain roles, or instruct Claimant to clear it through them first before reassigning Chef to another role – just as a precaution so Claimant wouldn’t incorrectly allocate the Chef to a role he was unsuitable for; but Respondent didn’t do that despite knowing Claimant was responsible for finding cover staff and despite everyone’s contracted terms of employment stating that they could be requested to carry out other roles (Once more, Peninsula relying on something at ET that was never investigated, never established, and never put to Claimant during the disciplinary process. Peninsula used the fact Claimant wasn’t the Chef’s line manager as reason for not informing him the Chef had personal problems).
The ET added “[Disciplinary Officer] believed that the claimant's actions had affected the smooth running of the hotel. He personally had observed this fact in his efforts to call the hotel twice and the call having rung out”
Peninsula convinced ET that the Disciplinary Officer’s phone calls ringing out was evidence that Claimant’s actions had affected the running of the hotel. But that contradicted the Disciplinary Officer’s own written statement because, in that, he stated “I called the hotel to speak to [Claimant] to say that I was on my way in, but there was no answer when I rang the phone number for reception. I thought [Claimant] must be away from the desk or assisting a guest or with breakfast”. The Disciplinary Officer himself gave reasons as to why the calls might not have been answered; each reason put forward was the Claimant dealing with hotel business – so it was accepted by Respondent at the time that calls to the hotel might not be answered because staff might be otherwise engaged. Therefore, a phone call being missed was not evidence of anything affecting the running of the hotel. It’s only when it came to presenting their case to ET that Peninsula changed the story and put forward a single theory that the calls ringing out meant the running of the hotel had been affected by Claimant’s actions – they didn’t say how the hotel had been affected; only that it was.
The ET later stated “[Disciplinary Officer’s] involvement was imperfect. He had witnessed some events that had a bearing on the eventual decision. In particular, he drew upon his own recollection that he had attempted to telephone the hotel and the call had twice rung out. He also took into account his own knowledge of staff training when distinguishing between the claimant's case and that of [the other Night Staff]”.
The ET acknowledged that the Disciplinary Officer was a witness, against the Claimant, in the very hearing he was chairing. A Disciplinary Officer is supposed to be independent and only take account of the evidence put to him by the Investigation Officer and the Claimant; by definition he can’t be independent if he is also a witness against the Claimant and relying on his own alleged and untested recollection. However, as mentioned in an earlier post, the ET gives leeway on this issue if the company involved is small with limited resources.
The ET continued, [Disciplinary Officer’s] involvement was still well within the reasonable range of procedures for this respondent. It is a small organisation and it had little room for manoeuvre. Realistically, the only alternative person with authority to discipline the claimant would have been [the Appeal Officer]. That would only have left [the remaining Company Director] to hear the appeal. It was not put to any of the respondent's witnesses that [the remaining Company Director] should have been designated to hear the appeal, and very probably that omission was deliberate and well chosen. [The remaining Company Director] did not take an active role in the operation of the business.”
And sure enough, the ET negated the fact that the Disciplinary Officer was a witness against the Claimant, and therefore not independent, by stating the Disciplinary Officer’s involvement was reasonable for this particular Respondent because they were a small business and the Disciplinary Officer could only have been replaced by the Appeal Officer which would have left no one to hear the appeal.
If you recall in an earlier post, we dealt with the fact that the Disciplinary Officer was NOT employed by the Respondent. It probably didn’t seem significant at the time but, this is where the that fact would have made an enormous difference because, had the ET known the Disciplinary Officer was employed by another company, and that Respondent could bring in people from outside their company and give them instant authority to carry out disciplinary hearings, that would mean Respondent had plenty of room to manoeuvre because they had alternatives and resources available to them and the disciplinary process could have proceeded unhindered simply by Respondent giving a person from outside their company the authority to hear a disciplinary, which would leave the original director in place to hear any appeal.
However, as shown in the previous post, The ET had never been informed that the Disciplinary Officer was employed by another company; instead Peninsula had falsely put to ET that the Disciplinary Officer was employed by the Respondent.
The ET allowed the above flaw to the disciplinary process simply because Peninsula convinced them that Respondent had no room to manoeuvre, no other alternatives, and no other resources.
The ET stated “It is said that [Investigation Officer’s] investigation was "perfunctory". I would not go that far. The investigation was certainly imperfect. The [other night staff] situation had been raised at the investigation meeting. There were steps that [Investigation Officer] could have taken in order to ascertain whether or not [other night staff] had received the same level of training as [the Chef]. However, I do not find that that omission takes the investigation outside the reasonable range of responses. [Investigation Officer’s] view was that the claimant was not comparing like with like. He observed that, whenever [other night staff] were on duty there was always a manager asleep on the premises who could be woken up if need be”.
The ET acknowledged the Investigation Officer was also a witness against the Claimant ie the Investigation Officer relied on his own alleged observations rather than information established by the investigation itself; therefore he too by definition could not be independent (it also has to be noted that the investigation itself did NOT establish any of the alleged facts relied on to dismiss Claimant – ALL alleged facts were groundless assumptions from the officers conducting the disciplinary process).
The ET also allowed this flaw to the disciplinary process simply because Peninsula convinced them that Respondent had no room to manoeuvre, no other alternatives, and no other resources.
The ET stated “[Appeal Officer’s] treatment of the appeal did not amount to a full re-hearing, as the disciplinary procedure prescribed. Taken together with the disciplinary meeting, however, it did not bring the investigation outside of the reasonable range for a small employer”.
The ET acknowledge that the appeal itself was conducted contrary to disciplinary procedures, but then negate that fact because the Respondent was a small business.
The ET further allowed this flaw to the disciplinary process simply because Peninsula convinced them that Respondent had no room to manoeuvre, no other alternatives, and no other resources.
Had it been disclosed to ET that Respondent could simply give disciplinary authority to people from outside the company, they would have known Respondent had alternatives and resources that small companies in general don’t have access to, which put Respondent in a much better position to comply with the disciplinary process than a typical small company – a fact which ET should have taken into account when deciding to give leeway on these issues.
The ET stated “It was also reasonable to conclude that the claimant, as a matter of common sense, knew that there had to be a responsible person on the premises at all times, whether they were called a "duty manager" or not and whether they had "manager" in their job title or not. That responsible person was allocated according to the rota and never included [the Chef]”.
The ET again relying on the false fact, put to them by Peninsula, that the disclosed rotas designated a ‘Responsible Person’. And not forgetting that Peninsula also convinced ET the Chef was not a responsible person because he allegedly had personal problems. If you recall, Respondent admitted that they had not informed Claimant of the Chef’s personal problems – so Claimant couldn’t take those alleged problems into account. As far as Claimant was concerned, the Chef had moved from a front of house Supervisory role, to being put in charge of the kitchen unsupervised – to the Claimant, that was a clear sign the Chef was a ‘Responsible Person’ and he took that into account when leaving the Chef in charge.
The ET added “it would be reasonable to conclude that the claimant, not having line management responsibility for [the Chef], had taken the risk that [the Chef] might not be an appropriate person to cover the hotel. It was an obvious risk bearing in mind he was never on the rota of duty managers”.
ET rely on Claimant NOT being the ‘Line Manager’ of the Chef; which in itself should have confirmed the Chef, who was supposedly not a 'Responsible Person', was left unsupervised in charge of the kitchen when Claimant or another GSM was the senior person in the hotel. Then ET rely on the false information, put to them by Peninsula, that the disclosed rotas designated ‘Duty Managers’.
The ET stated “It was plain that the events of 2 January 2015 had occurred whilst the claimant was under a final written warning. There was nothing on the face of the warning or in the procedure that had been followed that would have led either [Disciplinary Officer] or [Appeal Officer] to think that it would be inappropriate to rely on it”.
Peninsula knew the Disciplinary and Appeal Officers had knowledge which they had not disclosed to ET ie that procedures had not been followed and that the warning had been pre-determined. Strange that Peninsula did not disclose this information to ET as they were quite forthcoming when it came to disclosing alleged ‘knowledge’ that painted the Claimant in a bad light. This blog has already gone over the things Peninsula knew which made the warning inappropriate to use, and yet Peninsula still put to ET that it was appropriate to rely on it.
When the ET made its decision in favour of the Respondent, it relied heavily on all the false information put to them as ‘TRUTH’ by Peninsula.
The question now is; would the ET have come to a different decision had Peninsula disclosed the true facts of the case?
The answer to that question is a resounding YES! The pre-determined Final Written Warning, from 2014, on its own made the dismissal unfair. The pre-determined dismissal, from 2015, on its own made the dismissal unfair. The ET would have had no choice but to find the dismissal unfair on those two points alone. The details of who knew what, who was trained, if there were procedures, was there bias against Claimant etc would have come into play when apportioning blame and calculating any award for the Claimant.
The tribunal system is underfunded, it doesn’t have the time or resources to verify information put before it, so it relies on the honesty and integrity of those who put the information to them. Peninsula knew this and took full advantage.
Next post will be a recap - coming soon.