Monday, 12 November 2018

Another Recap part 2


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 yesbecause 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 panelit 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'



Tuesday, 30 October 2018

Another Recap part 1

In relation to the 2014 Disciplinary Process:

  • Peninsula approved allegations against Claimant which they knew to be false [Allegations were: "damage to the business" which was caused by Claimant "posting customer personal information on Facebook". Yet, on reviewing a copy of a screenshot of said post, Peninsula stated they could not find any personal information in it. They also told Respondent there was no loss to the company. On top of that, there was no evidence disclosed by the investigation that any damage had been caused as a result of the post. No personal information posted, no loss to company, no damage established, yet Peninsula still approved the allegations!! Guess they needed a way to get Claimant into a disciplinary hearing so the predetermined sanction could be issued!
  • Peninsula approved that the employee's chosen companion was not allowed to actually represent the employee at disciplinary. Claimant's Union Rep couldn't make it to the hearing so Claimant's brother was allowed to attend as a replacement, but then Peninsula/Respondent refused to let the brother actually represent Claimant.
  • Peninsula approved the issuing of a First & Final Written Warning which they knew was in bad faith and was in breach employment law. The Disciplinary Officer had informed Peninsula, 12 days prior to the Disciplinary Hearing taking place, that the employee was going to get the First & Final Written Warning. In fact, if you read an earlier post (Unbiased, impartial, independent, fair? No not really!!! Part 1), you will see that Peninsula had already suggested a Written Warning as the maximum sanction, but the Disciplinary Officer moved that forward to a First & Final Written Warning simply on his groundless and biased opinion that the Claimant was "damaging our business by being there".  As the warning was decided upon 12 days prior to the disciplinary hearing, it was clearly predetermined.
  • Peninsula approved breaches to the Disciplinary Procedures. Claimant was only supposed to be disciplined after careful investigation of the facts, as prescribed by procedures. However, in this instance, the facts relied on were not investigated or established - ie damage to the business was not investigated or established, it was simply the Disciplinary Officer's groundless and bias opinion that Claimant was damaging the business by being there. Further, the level of warning did not meet the criteria set down by the Disciplinary Procedures themselves ie for a First & Final Written Warning to be issued, the investigation had to show Claimant's actions had caused damage to the business - it failed to do so.
  • Peninsula approved breaches to the Claimant's employment contract. Sometimes disciplinary procedures form part of an employment contract, and sometimes they don't. In this case, the disciplinary procedures were part of the Claimant's employment contract and, as such, any breach to those procedures was a breach of the contract.
  • Peninsula approved breaches to the ACAS Code Of Practice. ACAS stated "The employer should provide the employee with all the evidence, typically in the form of witness statements, in advance of the disciplinary hearing. Ideally, the evidence should be provided when the employee is invited to the hearing, or at least far enough in advance for them to be able to prepare a defence"Respondent alleged damage to the business but, as Peninsula was well aware, Respondent did not provide Claimant with any evidence at all in support of this. The investigation did not establish any damage to the business. We now know 'damage to the business' was the Disciplinary Officer's own personal groundless and bias opinion which was simply approved by Peninsula in order to get Claimant into a disciplinary hearing so Respondent could issue a predetermined warning.
  • Peninsula approved changes to the allegations after the disciplinary hearing had taken place; the original allegation was "damage to the business through publication of customer personal information", but that was changed in the outcome letter to "brought the company into disrepute through publication of customer personal information". Bringing the company into disrepute had never been investigated, never been established, and was never put to Claimant during the entire disciplinary hearing. This new allegation was only disclosed in the outcome letter after the disciplinary hearing had taken place. Peninsula knew that both allegations were false because, as they themselves informed the Respondent on several occasions, no personal information had been published.
  • Peninsula was fully aware that the Disciplinary Officer could not be impartial when hearing the disciplinary because he had already predetermined the warning as mentioned above, and already held a view that Claimant was damaging the business by being there.
    • Peninsula was fully aware that the Disciplinary Appeals Officer could not be impartial when hearing the appeal against the warning because he had already contacted Peninsula directly, prior to any investigation or disciplinary hearing taking place, and was pushing for dismissal because he had already pre-judged the employee's guilt.

    This is how Peninsula conducted themselves regarding the Claimant's 2014 disciplinary process. The next post, 'Another Recap part 2', will remind you of how Peninsula conducted themselves regarding the Claimant's 2015 disciplinary process.

    Tuesday, 2 October 2018

    The Employment Tribunal Part 3c - Respondent witness statement by Appeal Officer

    Witness statements are supposed to be statements of FACT and should only contain FACTS which you know to be true, not assumptions or hearsay.

    The Appeal Officer's statement was prepared by Peninsula. While they may not have been aware of all the facts, Peninsula were fully aware that some things relied on were not, or may not be, true. Still Peninsula presented them or allowed their client to present them to ET as true facts. These 'facts' were subsequently taken into account when the ET made their decision in favour of the Respondent.



    Witness statement 3 - Appeal Officer (Director/Owner)

    This will be a short post as the Appeal Officer merely rubber stamped both sanctions on the word of the Disciplinary Officer without any further investigations and without any supporting facts being established by himself, the Disciplinary Officer or the Investigation Officer.



    RE Appeal Officer being independent:

    We previously saw how the Investigation Officer's statement claimed "I usually conduct investigations into such things in my position as deputy manager. This leaves [General Manager] free to do the grievance meeting or the disciplinary meeting himself, and [Director/Owner] (as director of the company) is in a position to independently hear any appeal against [GMs] decision"This leads us to believe the Appeal Officer only gets involved at appeal stage and is independent when hearing an appeal.

    We also saw how the Disciplinary Officer's statement claimed "The way of working that we have developed is that [Deputy GM] acts as the investigations officer, which leaves me to deal with any first-stage grievances or disciplinary matters that arise. Then, if there is an appeal against my decision, this is dealt with by a director ([Director/Owner], who is involved in operational matters from a director level and has a great deal of experience in hospitality industry and particularly hotel management)", [the Director in question being the Appeal Officer]; which again leads us to believe the Appeal Officer only gets involved at appeal stage, which would make him independent when hearing an appeal.


    Now the Appeal Officer himself makes similar claims:

    The Appeal Officer stated "I am one of 2 directors. The other is [2nd Director]. There are no other directors. On a day-to-day basis, I deal with strategic overview, relationship development, advertising, marketing and operations. [2nd Director] and I do not ordinarily get involved in the day-to-day issues of running the hotel, which we trust to the general manager. This includes responsibility for all first-stage disciplinary and grievance decisions"

    He added "[2nd Director] and I might become involved if the employee appealed against a general manager’s decision."

    He also added "I usually am called upon to hear any appeals from grievance/disciplinary decisions that are made by [Disciplinary Officer] in the first instance"

    On reading all the above statements you would easily be mistaken for believing the Appeal Officer only got involved if there was an appeal against the General Manager's decision. Peninsula approved all the above statements be put to ET as FACTS; the only reason to do that was to convince the Judge that the Appeal Officer was independent when hearing any appeal. However, Peninsula knew the Appeal Officer was not independent as shown below.



    RE 2014 Appeal Hearing:

    The Appeal Officer stated: "I also agreed with [Disciplinary Officer's] judgment that a First and Final Warning was the appropriate sanction"


    If you recall from an earlier post 'Unbiased, impartial, independent, fair? No not really!!! Part 1 (with additional on 18/03/2018)', the Appeal Officer contacted Peninsula regarding the 2014 disciplinary, prior to any investigation or disciplinary hearing taking place. The below screenshot shows he was not happy with issuing a Letter Of Concern or taking disciplinary action; he wanted the matter treated as GM (gross misconduct - which was an instant dismissal). He made it quite clear which sanction he wanted to impose on the Claimant.
    Peninsula can't say they didn't know about this because they gave the Appeal Officer the following advice:

    Because dismissal was not an option in this instance, and because the Appeal Officer had made it clear he wanted the maximum sanction, and not forgetting the Disciplinary Officer himself wanted to send a message to the hotel and staff, a sanction just short of dismissal was imposed. No surprise really that the Appeal Officer would simply rubber stamp this sanction despite it breaching their own disciplinary procedures.

    So when Peninsula approved the above ET statements regarding the Appeal Officer being independent and not getting involved until appeal stage, they knew the statements were untrue because they knew as FACT the Appeal Officer did get involved prior to appeals and that he made it clear he wanted the Claimant dismissed from the very beginning; which meant the Appeal Officer could not be independent when hearing any appeals regarding the Claimant.




    RE 2015 Appeal Hearing:

    The Appeal Officer stated: "Of particular importance, in my opinion, was the fact that a similar incident had happened on 25 October 2015 and [Claimant] had taken it upon himself to work additional hours so that there would be no staff shortage on the busy morning shift"



    This is now where the Appeal Officer relied on the false incident from October 2014 as mentioned in the previous post (yes we know he says October 2015 but that is just a clerical error with the year; Claimant had already been dismissed in January 2015). Bare in mind, there were no investigation notes into this incident disclosed from the Disciplinary Officer; this was just something he tagged onto the end of the dismissal letter without putting it to the Claimant at the disciplinary hearing. So the Appeal Officer had no evidence that this alleged incident had occurred. There were also no investigation notes disclosed from the Appeal Officer showing he had actually investigated the issue; yet somehow he managed to change the date and the details of the incident. He too simply tagged it onto the appeal outcome letter without putting his alleged findings to the Claimant at appeal hearing.

    Peninsula clearly saw a problem with this alleged incident as they went on to question it:

    Peninsula also questioned why were they relying on it if it never happened, but also impressed on Respondent how important it was not to let this issue go:

    Don't forget, Peninsula were also informed there were TWO other managers on site at the time; which meant, even if the incident was true, it was not an example of the Claimant having previous experience of dealing with lack of management at the hotel. So it was not a similar incident to that in 2015:
    Despite Peninsula's concern that the incident didn't happen, despite them being informed that TWO other managers were on site, Peninsula still approved the Appeal Officer stating to ET that the incident did happen and that it showed the Claimant had prior experience of dealing with management absence!


    The Appeal Officer further stated "Given that there was a live First and Final Written Warning on file from November, I believe that [Disciplinary Officer's] decision to terminate his employment with notice was entirely reasonable"

    Peninsula approved the Appeal Officer citing the First & Final Written Warning as justification for the dismissal being reasonable, despite them knowing the Warning was issued in bad faith as it had been decided upon prior to the relevant disciplinary hearing taking place:



    As with the other statements, this witness statement, put forward by Peninsula and the Appeal Officer as 'True Facts', allowed information they knew wasn't true or suspected wasn't true to be included - this information would go on to affect the outcome of the ET.

    Peninsula, being the leading Employment Law firm they claim to be, would know that it was misleading to put information before a Court which they knew to be untrue. Yet, they showed complete disregard for the Court when they allowed untrue information be put forward as true facts, by all Respondent witnesses!!


    Next post will be a recap of everything before we deal with the actual Employment Tribunal.

    Thursday, 20 September 2018

    The Employment Tribunal Part 3b - Respondent witness statement by Disciplinary Officer Pt2


    Witness statements are supposed to be statements of FACT and should only contain FACTS which you know to be true, not assumptions or hearsay.

    In part 1 we saw how Peninsula allowed the Disciplinary Officer put to ET that a previous warning was issued in good faith. 
    • This warning will later become pivotal to the case as ET will deem that this warning alone brought the dismissal 'just about' inside the band of reasonableness.
    • Peninsula knew full well that the warning was not issued in good faith as that particular sanction had been approved by them 12 days prior to any disciplinary hearing taking place - which meant the sanction had been predetermined.

    Peninsula also approved the Disciplinary Officer mislead the ET, and the Claimant, by stating he was employed by the Respondent, when in fact Peninsula knew he was not.
    • This made a difference because it would go on to convince ET and Claimant that the Disciplinary Officer was employed by the Respondent and, that as a small business, he was the only person who could hear the disciplinary itself.
    • It also meant that any allegation of the Disciplinary Officer not being independent (an issue raised by Claimant at disciplinary stage) would have far less impact because ETs give leeway on this if the business in question is small with apparent limited resources.

    Peninsula further approved statements to ET which they did not know were true as no supporting documentary evidence had been disclosed to them.
    • You could argue that Peninsula have to take the word of their client, but we would argue that Peninsula were in a unique position as they had already dealt with the Claimant's Subject Access Request and had full disclosure of his personnel file.
    • If the statements made by their client were true, there would have been supporting documentary evidence in the Claimant's personnel file. The lack of any such evidence should have confirmed to Peninsula that their client's statements to ET were not accurate.

    While they may not have been aware of all the facts, Peninsula were fully aware that some things relied on were not, or may not be, true. Still Peninsula presented them or allowed their client to present them to ET as true facts. These 'facts' were subsequently taken into account when the ET made their decision in favour of the Respondent.



    This is part 2 of the Disciplinary Officer's statement which was also prepared by Peninsula.


    Witness statement 2 - Disciplinary Officer (General Manager)


    RE Claimant sick leave Oct/Nov 2014:-

    In relation to the 2014 disciplinary hearing the Disciplinary Officer stated "At the end of this meeting (see page 51), [Claimant] told me that he was taking some time off as either holiday or sick and he wouldn’t be back until 17 November. He hadn’t booked this as annual leave and he wasn’t giving any notice so I couldn’t grant it as annual leave. He didn’t attend for work and this had to be recorded as sick leave. He did submit a sick note for this period"

    That statement was partly true (which seems to be an ongoing tactic of Peninsula/Respondent - they weave truths in with untruths).
    • Claimant said he was taking time off work due to all the stress and sleepless nights the process had caused him - unsurprising really as the Respondent conducted a meeting without informing Claimant it was an investigation meeting, exaggerated the effects of Claimant actions without any investigation into the effects, conducted a disciplinary hearing without allowing Claimant sufficient rest time after doing a night shift, and refused to let Claimant's chosen companion represent him.
    • Claimant said the time off could be put as sick leave or, due to the amount of holidays he had built up, he suggested it could be put as holidays to use up some of his holiday leave. The holiday suggestion was immediately rejected. Claimant then followed sick reporting procedure. 
    • While off sick Claimant was diagnosed as suffering from "work related stress" by his GP, which was clearly stated on the sick note (as mentioned in an earlier post "Unbiased, impartial, independent, fair? No not really!!! Part 2").
    • After returning to work the Claimant informed Respondent that his GP recommended they conduct an "Occupational Health Assessment" and he also told them the assessment was because the GP believed the 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".
    • The Claimant's condition, and GP advice, was passed on to Peninsula; then completely ignored.
    • Respondent waited over a month and only then conducted a Workplace Stress Assessment, which fell way short of an Occupational Health Assessment.
    • Respondent then failed to follow up on the findings of the Workplace Stress Assessment.

    In the ET statement Peninsula/Respondent cited the Claimant was off sick, cited the sick note, cited the relevant date, cited other details, but conveniently left out the part were the GP had diagnosed Claimant as suffering from "work related stress", and left out the part were the GP had suggested Respondent conduct an "Occupational Health Assessment", and left out the part were Respondent had been informed that the 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". 

    What possible reason could there be for Peninsula/Respondent not disclosing this information to ET? 

    To attach little importance to the Claimant's condition, to hide GP's concern of Claimant’s condition, to hide that they had been informed of a ‘potential’ disability, and to mislead the ET into believing the Claimant's stress was just his own perception of stress and not something that had been formally diagnosed by a GP.

    Peninsula are supposed to be leading when it comes to Employment Law, so they would know the impact of the GP's comments and diagnosis if they disclosed them to ET.



    RE Duty Manager:-

    As said in the Investigation Officer's post, there was no mention of 'Duty Manager' during the entire disciplinary process, which included the disciplinary hearing. 'Duty Manager' was never part of the particulars of the allegation and never put to the Claimant at any time during the disciplinary hearing; so the Claimant was not given a fair opportunity to comment on what he believed a 'Duty Manager's' roll was, who he believed the 'Duty Managers' were, and if he believed a 'Duty Manager' was on site when he left the hotel.

    Why are we bringing this up? 

    Under the supervision of Peninsula, the Disciplinary Officer's witness statement suddenly changed the particulars of the allegation and started to refer to night staff as 'Duty Managers', something he had not done during the disciplinary process. Bare in mind the Disciplinary Officer had already stated at disciplinary that night staff were 'Managers', then changed his mind and stated they were not 'Managers' (after Claimant had confirmed with the relevant staff that they were not managers), and now changed his mind for ET purposes by stating they were 'Duty Managers' (Claimant no longer in a position to confirm with relevant staff whether or not they were duty managers).

    This term 'Duty Manager', that all Respondent witnesses were now throwing about in their statements, helped convince ET that the other night staff were 'Duty Managers' despite there being no mention of this in the disclosed notes from the disciplinary process.


    He also stated "There is always a duty manager on site, who is the person responsible for guest security, guest safety and complaints".

    Remember, these are statements of FACT and should only contain FACTS which you know to be true, not assumptions or hearsay 
    • The Disciplinary Officer only started at the hotel in July 2014, which means he wasn't there for the first month the Respondent owned the hotel and, he wasn't there for the previous years it was owned by a different company, so he had no first-hand knowledge if duty managers were always on site under the previous owners.
    • He made no enquiries into duty managers under the previous owners, so he had no supporting evidence disclosed to him that duty managers were always on site under the previous owners.
    • The investigation had not established or documented if duty managers were always on site under the previous owners, so he had no supporting facts from the Investigation Officer.
    Had the Disciplinary Officer stated there was always a duty manager on site from the date he started at the hotel, that would be something he would likely know as fact; but he didn't say that! To say "there is always a duty manager on site" implies, and was taken by the ET to mean, the hotel has always had a duty manager on site regardless of who owned it; but that was not a true fact which the Disciplinary Officer would know in this instance. Even after the Claimant stated during the disciplinary hearing that managers were not required on site at all times under the previous owners, the Disciplinary Officer chose to rely on his own groundless belief rather than verify the Claimant's statement.

    Again, Peninsula approved the use of the term 'Duty Manager' for ET purposes despite it not being part of the particulars of the allegation and never being mentioned or established by the Disciplinary Officer during his involvement with the disciplinary process.



    RE 2015 Disciplinary Hearing:-

    As with the 2014 disciplinary hearing, all the so called evidence against the Claimant in this hearing was simply the opinions of the Disciplinary Officer; no supporting evidence had actually been gathered or established by the relevant investigations. As the Disciplinary Officer was relying on just his own opinions, that made him the sole witness for the Respondent against the Claimant - and this Respondent witness, who had already shown a bias attitude against Claimant in the previous disciplinary process, was again hearing a the Claimant's disciplinary! All the more reason why someone else should have heard this disciplinary; and the Disciplinary Officer's lie about his employer has now become more relevant (if you recall from the previous post, Peninsula knowingly approved the Disciplinary Officer falsely state he was employed by Respondent and then go on to convince ET there was no one else to hear the disciplinary)

    The Disciplinary Officer stated "This meeting took place on 21 January. [Claimant] attended with his union representative. The notes of this meeting are at pages 101-103. They were subsequently sent to [Claimant] and the comments at pages 104-106 and 111-113 are his amendments to those minutes. [Claimant] presented me with some documents, which I will refer to below.

    I would invite the Tribunal to read the minutes of the meeting in full."

    The Disciplinary Officer invited ET to read the notes of the meeting 'in full'; which implied the notes they had disclosed from the meeting were complete.

    Peninsula and Respondent both knew the notes they had disclosed to ET were incomplete
     as they failed to include or even summarise any of the notes read out by the Claimant at the disciplinary hearing; such as the Claimant's correspondence with the Fire Service or the Claimant raising the Workplace Stress Assessment which had been conducted at beginning of the shift concerned.

    The Claimant raised several witnesses during the disciplinary hearing, from staff to the Fire Service, who could confirm or clarify specific issues; but they were never contacted and Peninsula then allowed Respondent to state to ET that Claimant 'hadn't named other witnesses'. Peninsula/Respondent then conveniently left out the relevant parts from the disclosed notes of the meeting where witnesses had been raised.

    What reason could there be for Peninsula and Respondent not disclosing the complete notes of the meeting?

    Probably the fact that the witnesses from the Fire Service, regarding hotel evacuations, refuted Respondent's argument that lack of enhanced training was a risk to health & safety! And the fact that those missing notes showed that Claimant had raised the Workplace Stress Assessment during the disciplinary.



    The Disciplinary Officer further stated "Just putting [Chef] in charge was, in my opinion, unsatisfactory because [chef] was a breakfast chef and not trained in any of the relevant areas (emergencies, fire evacuation procedure, first aid etc., never mind Brilliant and general reception duties)" - FYI 'Brilliant' was just the name of the pc system used to book guests in and out

    Bare in mind the Respondent will later convince ET that claimant was not the line manager of the Chef which is why they did not disclose the Chef's drinking problem to Claimant in order for him to make an informed decision when finding cover staff. This meant on the morning in question, the Respondent left the Chef in charge of the kitchen, unmanaged, unsupervised, and according to Respondent untrained in fire evacuations and first aid (even though later in a separate argument Respondent will state that everyone had done the mandatory first aid and fire safety training - but then they do continually change the details to fit in with the argument at the time, which can clearly be seen once all the notes are cross referenced).

    The Chef, who allegedly had a drinking problem (no evidence was ever disclosed to support this)was responsible and sound enough to be left in charge of the kitchen on his own, comply with food hygiene legislation, use electrical and gas appliances, use sharp implements, supervise staff in the kitchen, evacuate everyone from the kitchen in the event of a fire or other emergency, and help with hotel evacuations if needed, but apparently his drinking problem meant he was not responsible or sound enough to supervise staff at reception or evacuate everyone from hotel if needed if he happened to be at reception.

    This is one argument put to ET as to why the Chef was not suitable to be left in charge!

    All the above attempts by Peninsula/Respondent to mislead the Court had no supporting evidence but were taken at face value by ET and each one did their part to erode the Claimant's case.


    However the next one, along with the predetermined warning mentioned in other posts, was vital in Peninsula/Respondent attempts to mislead the Court.

    Respondent had already confirmed there were no procedures for the Claimant to follow, this meant the Claimant had no guidance on how to deal with the circumstances he faced in January 2015. Lack of procedures would pass the responsibility back to the Respondent unless they could come up with a reason as to why the Claimant would know what to do in this situation. 

    They couldn't use training as there was still an unresolved issue as to whether or not the Claimant was trained in this area. So Respondent invented a false incident where a manager had previously not turned up for their shift and Claimant had stayed over to cover so the hotel wouldn't be without management.

    This false incident was approved by Peninsula and peddled several times in the Disciplinary Officer's statement; it even appeared in the dismissal and appeal letters despite not being investigated, established or put to Claimant during the process:-
    • From dismissal letter: "I refer at this point to an instance on 24th October 2014 where in fact you did by your own actions acknowledge the need for sufficient appointed managerial cover on site by extending your own shift period to 09:45 to cover a managerial staff shortage having made appropriate telephone contact with relevant staff members to advise of the problem. (It later transpired that Claimant was not even at work on the morning of 24 October 2014. Not to worry, Appeal Officer will simply change the date of alleged incident)
    • From appeal outcome letter: "Having investigated the incidents of 25th October 2014, it has been found that you had covered until 9.45am for a kitchen staff member who had reported their absence earlier in your shift. You subsequently acknowledged the need for action to deal with this absence and took this upon yourself to arrange and ensure that there would be no staff shortage during the busy breakfast shift. You contacted [manager who was staying in hotel room] who you told that you had covered and you were leaving so he had to be contactable in his room in the hotel" (He says he investigated but no investigation notes were ever disclosed to Claimant or ET relating to such an investigation and Claimant was not given opportunity to meet this argument at appeal stage. And he conveniently changed the date of the incident to when the Claimant was on shift. He also confirms it wasn't a manager that was allegedly absent, and further confirms there was actually another manager in the hotel at the time; which means even if this incident was true, it was not an example of Claimant knowing what to do if there were no other managers in the hotel)
    • From ET statement: "I was confident that [Claimant] knew that there needed to be a duty manager on the premises at all times because he had stayed late himself on one occasion in October". (Using the false October 2014 incident to establish Claimant had prior experience of the issue)
    • From ET statement: "He says that there are no formal guidelines for what he is supposed to do in those circumstances (i.e. the next incoming manager calls in sick). That is true, but there is a minimum standard that you would expect of someone in a management position. I don’t think that not having it written down is a valid criticism. Common sense would dictate that you try to find another manager to cover or you stay yourself until someone can relieve you. [Claimant] knew this, because he did exactly that in October." (Again using the false October 2014 incident to establish Claimant had prior experience of the issue. Also bare in mind, the person giving this statement is the same person who put the Claimant in the management position without any interview or vetting procedures taking place, and only had assumptions regarding the Claimant's training)
    • From ET statement: "[Claimant] could have stayed himself, as he had in October. He didn’t." (Once again using the false October 2014 incident to establish Claimant had prior experience of the issue)
    Peninsula/Respondent knowingly stated a false incident from Oct 2014, where a manager allegedly didn't turn up for their shift, and Claimant allegedly decided to stay over and cover the absence so the hotel would not be left without a manager on site. We say 'knowingly stated a false incident' because, as mentioned in a previous post "Unbiased, impartial, independent, fair? No not really!!! Part 3"Respondent had already told Peninsula that on the morning in question there were in fact two managers on site, the Early GSM who they also confirmed was not trained but was put on shift as a manager regardless, and another manager who was staying in one of the hotel rooms. So the hotel would not have been left without a manager which means it was not an example of Claimant knowing what to do if there were no other managers on site. 

    Peninsula even questioned the issue (see previous post "Unbiased, impartial, independent, fair? No not really!!! Part 3") 
    and then impressed on Respondent how important it was not to let the issue go:
     
    Respondent had previously admitted there were no procedures in place. Now we see there was no evidence that Claimant had prior experience of covering for a managerial absence as the one example relied on by Peninsula and Respondent didn't actually take place. 

    Despite Peninsula having major concerns regarding the October 2014 issue, despite it never being established and no supporting evidence being disclosed to Peninsula after they questioned it, despite Peninsula being informed that 2 managers were on site at the time in question, they still approved Disciplinary Officer stating several times to ET that there was a management absence and Claimant stayed over so the hotel would not be left without a manager. This was enough to convince ET, that even without procedures the Claimant would still have known what to do in January 2015 because ET now believed Claimant had prior experience of the same situation!!!




    To sum up the Disciplinary Officer's written statement of facts to ET:
    • Peninsula knowingly approved false information regarding a previous warning
    • Peninsula knowing approved a false incident in order to establish claimant had prior experience of a situation
    • Peninsula knowingly approved other false information - ie the Disciplinary Officer's employer, admissions of guilt that were never documented etc
     All this false information would go on to affect the outcome of the ET in favour of Respondent.


    Next post will deal with the Appeal Officer's statement.