IN THE JERSEY EMPLOYMENT AND DISCRIMINATION TRIBUNAL

IN THE MATTER OF:

TRIBUNAL JUDGMENT

 

 

Reference:                    [2024]TRE185

 

Hearing Date:                 Monday 27, Tuesday 28 and Wednesday 29 January 2025

 

 

Before:                         Mr M Salter, Deputy Chair                     

 

Appearance:

 

For the Claimant:           Ms J Mwakazi

For the Respondent:      Mr S Hollywood

 

 

JUDGMENT

 

The Claimant’s dismissal was not automatically unfair or unfair.

 

The Claimant was not subject to race discrimination

 

REASONS

 

References in square brackets below are unless the context suggests otherwise to the page of the bundle. Those followed by a with a § refer to a paragraph on that page and references that follow a case reference, or a witness’ initials, refer to the paragraph number of that authority or witness statement.

 

INTRODUCTION

 

1.              These are my reasons for the judgment above. They were given orally at the Hearing on 29 January 2025.

 

 

BACKGROUND

 

The Claimant’s case as formulated in his Claim Form

 

2.              The Claimant’s complaint, as formulated in his Claim Form, presented to the tribunal on 12 August 2024 is, in short, he was unfairly dismissed and that he was subject to acts of discrimination because of race in the disciplinary process he was dismissed after.

 

The Respondent’s Response

 

3.              In their Responses the Respondents accepted the Claimant was the First Respondent’s employee, but denied that the Claimant had been subjected to discrimination

 

Relevant Procedural History

 

4.              The matter came before me for a Case Management Meeting on 23 September 2024 during which a list of issues was produced and the matter set down for a Final Hearing on the three dates above.

 

5.              In the week leading up to the Final Hearing it became apparent that the tribunal would not be able to convene a full three-person panel. The parties were asked whether they consented to the Final Hearing being heard by a Deputy Chair sitting alone. Both parties did consent and so the matter proceeded.

 

THE FINAL HEARING

 

General

 

6.              The matter came before me for a final hearing. The Claimant was represented by Ms Mwakazi and all Respondents were represented by Mr Scott Hollywood, the First Respondent’s General Manager, and Second Respondent.

 

7.              This was a hybrid hearing that was not objected to by the parties, being conducted by the Lifesize video platform. For the reasons given below, a face-to-face hearing was not held because it was not practicable. I attended via video, as did the Claimant and many of the witnesses.

 

8.              The parties were able to hear what the tribunal heard and see the witnesses as seen by the tribunal. From a technical perspective, there were no significant difficulties, albeit the Claimant’s connection often dropped out. When this happened either the Claimant was able to quickly reconnect or the Registrar’s telephoned the Claimant and he attended via telephone

 

9.              The participants were told that it was an offence to record the proceedings.

 

10.          When evidence was heard from the various witnesses via video link I was satisfied that none of the witnesses was being coached or assisted by any unseen third party while giving their evidence.

 

Particular Points that were Discussed

 

The Claimant’s Application to Adjourn

 

11.          At the outset of the hearing the Claimant applied for the matter to be adjourned on the grounds that he had only recently discovered that Mr Hollywood sat as a non-Legal Member of this tribunal. The Claimant felt this would give the Respondents an unfair advantage as Mr Hollywood would have experience of the processes of the tribunal. I explained to the Claimant that I had an obligation under the Overriding Objective to ensure that the parties are on an equal footing. I also pointed out that had the Respondents instructed an Advocate or other legal representative, the Claimant would not be able to object to the representative.

 

12.          I did not consider it would further the Overriding Objective to adjourn the hearing on this basis as it would delay the hearing further, which would impact other tribunal users whose cases would be delayed. There had also been difficultly in obtaining panel members to sit on this hearing, that difficulty may still remain in the future.

 

13.          Having made this decision, I went on to consider whether I should recuse myself from the hearing on the basis of apparent bias, because of Mr Hollywood’s involvement with the tribunal, and that the hearing should be heard by a full panel. I should point out that the Claimant did not make an application of any sort of bias. I considered that there were no grounds for me to recuse myself in this matter: I had not sat with Mr Hollywood, I do not recall ever meeting him at any training event, I had not sat with members in Jersey since before 2020. I decided there would not be any impression of bias to a reasonably well-informed observer.

 

Litigants in Person

 

14.          Both of the parties were litigants in person and so I explained to them that I would not conduct their cases for them or cross-examine witnesses on their behalf and that they had to present their cases to me, and challenge the evidence they did not accept. I did have to put various aspects of the Claimant’s case to the Respondent’s witnesses, most notably the allegations of discrimination.

 

DOCUMENTS AND EVIDENCE

 

Witness Evidence

 

15.          I heard evidence from:

a.              On behalf of the Claimant from:

i.               the Claimant himself;

ii.              Ms Victoria Ndungu, an employee of the First Respondent who attended the disciplinary meetings with the Claimant

iii.             Ms Gracinda Leirinha;

iv.            Ms Merab Aguk; and

v.              Mr Romeo Lopez.

 

b.              On behalf of the Respondents from:

i.               Mr Hollywood, the First Respondent’s General Manager;

ii.              Mr William Jackson, the General manager of the Pomme D’or hotel, who is the dismissing manager;

iii.             Mr Luis e Oliveria, the Operations Director of the Frist Respondent’s Group, who conducted the Claimant’s appeal;

iv.            Ms Jeangil Pagunsan, and employee of the First Respondent;

v.              Ms Kirsten McCann, the First Respondent’s HR Administrator; and

vi.            Mr Peter Katana, an employee of the Respondent.

 

16.          I was told that Ms Leirinha, was unable to attend to give evidence live. I gave such weight as I thought appropriate for those witnesses as they did not attend to give evidence.

 

Bundle

 

17.          To assist me in determining the claims I have before me today a bundle consisting of 156 pages. I have identified these in the judgment below as [X §A] where “X” is the page number, and A is a paragraph number.

 

MATERIAL FACTS

 

General Points

 

18.          From the evidence and submissions, I made the following finding of fact. I make my findings after considering all of the evidence before me, considering relevant documents where they exist, the accounts given by all the witnesses in their respective statements and in oral testimony. Where it has been necessary to resolve disputes about what happened I have done so on the balance of probabilities taking into account my assessment of the credibility of the witnesses and the consistency of their accounts with the rest of the evidence including the documentary evidence. In this decision, I do not address every episode covered by that evidence, or set out all of the evidence, even where it is disputed. Rather, I have set out my findings of fact on the evidence before me that I consider to be necessary to fairly determine the claims and the issues to which the parties have asked me to decide.

 

The Respondents

 

19.          The Seymour Group is a group of companies that includes the First Respondent and other hospitality businesses in Jersey, including the Pomme D’or Hotel. The Second Respondent is the First Respondent’s General Manager, the Third Respondent holds that position in the Pomme D’or and the Fourth Respondent is the Operations Director for the Group.

 

Secondary Employment in the Hospitality Industry

 

20.          The First Respondent is a seasonal hotel. It operates from March to October in any given year. It is staffed by a mix of employees of, I am told, 23 different nationalities. Those employees, for my purposes, fall into two distinct categories: those who require a Work Permit to work in Jersey and those who do not.

 

21.          The Claimant is a Kenyan national and requires a work permit to work in Jersey. At the time relevant to this matter, he had a 9-month Temporary Work Permit.

 

22.          The Customs & Immigration Service has prepared a document that contains a  Notice to Employees on the 9-month Temporary Work Permit [92] (“CIS Note”). There is no dispute that this applies to the First Respondent or Claimant, and that document states:

 

You can:

…

·               Take on additional employment of up to 20 hours per week in the sector for which your work permit has been issued – you will require written permission from your primary employer.

 

23.          In the Notice of Employers, which is another part of the CIS Note, states that a:

Temporary work permit holder, with the written consent of their employer, can take similar part-time work in their sector.

[94]

 

24.          This point is emphasised in the FAQ to the CIS Note [95]-[96] which repeats the need for employer consent and the effect of not obtaining it.

 

25.          The First Respondent has a Second Job Policy [152]. So far as is relevant it states:

 

2. Staff who are on Work Permits

 

If you are on a work permit, we will not give you permission to work anywhere except Seymour Hotels properties. If you are caught working in other properties that are not Seymour Hotels of Jersey you will be in breach of your immigration T&C’s and we can terminate your employment.

[152]

 

A similar form of words is contained within the employee handbook [85].

 

26.          From what I have seen this policy is stricter than permitted by the CIS Note, but is not inconsistent with it.

 

27.          The Claimant’s contract of employment contains the following term:

 

Secondary Employment

 

If you are on a work permit, you will not have permission to work anywhere except Seymour Hotels properties, unless you have a letter from your General Manager or Group HR Manager. If you are caught working in other properties that are not Seymour Hotels of Jersey you will be in breach of your immigration T&C and we can terminate your employment.

[81-82]

 

28.          The First Respondent also highlights the restriction on secondary employment at meetings at the beginning and end of each season, and team leaders are reminded of this by the General Manager on frequent occasions. The Second Respondent stated he also raised this at most meetings he holds with staff. The Claimant denied this, however Ms Ndungu, who was called on behalf of the Claimant, confirmed that the staff were told of this restriction at many meetings. I therefore find that the message was disseminated to staff frequently and often, and reject the claimant’s account, of him not being told.

 

29.          The situation of constant alerting to the policy, appears to have come about as in 2022 the First Respondent became aware that members of its staff were undertaking secondary employment without permission. It therefore declared an amnesty for employees who came forward, and issued those employees with the required letter of permission.

 

30.          One of these employees who undertook secondary employment was Jeangil Pagunsan.  Ms Pagunsan is a national of the Philippines, and undertook secondary work at the Sea-Fish Café. She stated she undertook this role in 2022 and explained that she arrived for the season late (in June) and needed to make money to pay her expenses over the limited period she was able to remain. After the 2022 amnesty she states has not undertaken any secondary employment. Ms Pagunsan is not related to Mr Hollywood’s wife (as the Claimant alleges).

 

31.          On behalf of the Claimant, Mr Lopez gave evidence that he had been told by two managers that Ms Pagunsan had, in fact, undertaken secondary employment in 2023 and 2024, so after the 2022 amnesty.

 

32.          It is not controversial that Ms Pagunsan had not been disciplined, and (in fact) had been promoted. I heard evidence that Ms Pagunsan had to apply for this new role and was appointed after an application process.

 

33.          On balance, on the issue of Ms Pagunsan’s secondary employment, I prefer the evidence of Ms Pagunsan in this regard. She was clear in her evidence that she did not undertake secondary employment, her evidence was consistent with the timeline of the amnesty, and, whilst I do not think he was lying or setting out to mislead me, Mr Lopez’s evidence was incomplete in that he could not say the names of the managers who are said to have informed him of the years Ms Pagunsan had secondary employment.

 

34.          Mr de Oliveria informs me that last year the Seymour Group provided over £500,000 in overtime payments to its staff. I find that vacancies are advertised on the staff notice board and on television in the canteen. Staff can see work that needs undertaking and apply for it. They can do this by approaching the General manager or team leader.

 

The Handbook and Disciplinary Policies

 

35.          The Claimant arrived in Jersey for the 2024 season. In advance of this season, he had signed and read his contract and Staff Handbook. The Contract contains the term above. The handbook contains a non-exclusive list of examples of gross misconduct [127] that includes proven dishonesty. It says dismissal will likely occur from gross misconduct. The same policy defines “Other Serious Misconduct” as including “failure to properly follow procedures”. Any incidence of this is said to result in “disciplinary action other than dismissal will normally apply” [128].

 

36.          The Respondent’s disciplinary Policy has a wider definition of gross misconduct [145] that includes proven dishonesty, and “a serious breach of the Company’s policies and procedures or the employee’s contract of employment” [147].

 

37.          It would appear, therefore that a breach of policy is “other serious misconduct” whilst a serious breach is gross misconduct.

 

The Claimant and Secondary Employment

 

38.          The Claimant accepts that, whilst employed by the First Respondent, he undertook part-time work at the Beausite Hotel in Gorey. All parties accept the Claimant had not sought any permission from the First Respondent, and in particular the Second Respondent.

 

39.          The Claimant says this was because he found the Second Respondent not easy to approach. This was not supported by any witness who was asked about it. Mr Katana, who had no motive against the Claimant, having known him for years and holding him in high esteem, disputed the Claimant’s account saying that Mr Hollywood had an “open door” policy and was easy to speak to, and, indeed, Mr Hollywood had, in the past, permitted the Claimant’s wife to live in the Frist Respondent’s accommodation.

 

The Claimant’s Secondary Work

 

40.          On 21 June 2024, Mr Hollywood was informed that the Claimant had been undertaking this work in a hotel in Gorey. Owing to an existing contact there, Mr Hollywood was able to call the hotel and discuss the Claimant. Mr Hollywood’s contact there confirmed that the Claimant and his wife had worked for them, and that the Claimant worked for them that year. Mr Hollywood’s contact there confirmed this in writing [97].

 

Investigation Meeting

 

41.          As a result of this news, the Claimant was called to an investigatory meeting. This was held by Mr Hollywood; Ms McCann attended to take note. after the purpose of the meeting was explained, the minutes record [65]:

SH: Someone has reported that you are working elsewhere.

HA: Working

SH: yes, doing casual hours in another company

HA: No, I worked there when my wife was working there but recently just visit as a friend, not working there.

 

42.          The Claimant’s account here is untrue: he was working there. The Claimant before me sought to explain his answer on the basis that he had been asked if he was “an employee”. Whilst this would make some sense, it is, I find totally incredible as an explanation when one considers he explicitly says “but recently just visit as a friend not working there”, whether an employee or not, this latter part of the explanation clearly not right.

 

43.          The Claimant continued his untruthful account in the meeting when he says:

 

SH: You do know you can't work anywhere else without permission letter given by me?

HA: Yes

SH So you know where I am talking about, The Beausite Hotel”

HA: Yes

SH: You are saying you haven't worked there this year

HA: No I have been there about 4 times to visit but not working, there as a day I helped move beds and plant pots but not doing part time.

 

44.          This is clearly a lie.

 

45.          The Claimant later confirmed that he was present at the season-starting meeting on 25 March 2024 (as well as the 2023 meeting) where he was reminded that part-time employment was not permitted. [65] He contends he “I didn’t take it as a constant job and I didn't feel like I had to say”. The meeting ends and the Claimant is suspended from duty [67]. The letter does not specify the allegations the Claimant faced but obliquely refers to “conduct in the workplace”.

 

46.          The uncertainty is removed to some degree, by the letter calling the Claimant to a disciplinary meeting. This letter was also on 21 June and called the claimant to a meeting on 24 June 2024 [70]. This did not include any allegation of being dishonest but limits the allegation to “working outside of your contract without company permission”. The letter also identifies that Mr Hollywood would undertake the disciplinary hearing.

 

Disciplinary Hearing. …

 

47.          It was not Mr Hollywood who undertook the hearing it was William Jackson. It was held on 25 June 2024 [103], and the Claimant was accompanied by Ms Victoria Ndungu, an employee of the First Respondent. Mr Jackson did not know the Claimant as he worked in a different site from him but said he had been to events where the Claimant was. The claimant did not object to Mr Jackson conducting the meeting.

 

48.          During this meeting:

 

a.              the Claimant stated he was well aware of the contractual term, Seymour Hotel Policy and Jersey immigration policy [103];

b.              He had attended team briefings where this was underlined;

c.              Signed the staff handbook that contained information on this point;

d.              Mr Jackson considered the Claimant’s apology (written by him on 24 June 2024 [101]) and the reason given for the Claimant’s action. The letter is read out by Mr Jackson in the meeting [103]

 

 

49.          I had no reason to doubt Mr Jackson’s evidence as to what was discussed at the disciplinary hearing. He gave clear and straightforward evidence. He was clear that there was no mention of any discriminatory behaviour by Mr Hollywood I the investigatory meeting.

 

50.          Ms Ndungu also confirmed she considered that the meeting with Mr Jackson was fair and the Claimant had had a full opportunity to present his explanation.

 

51.          Mr Jackson retired overnight to make his decision. This was delivered on Wednesday, 26 June 2024 at 0930 and is summarised in a note on [106] which records that Mr Jackson found the allegation proven. It also states he recognised the Claimant had “apologized profusely for this and note your tenure with the company” [106] but that the Claimant has deceived your General Manager and were dishonest during the investigation processes which implies you knew the severity of doing what you did”

 

52.          The Claimant was therefore summarily dismissed, and this was confirmed in writing [109]. This identifies the “unacceptable” conduct that led to the dismissal was the Claimant’s breach of contract and breach of immigration T&C. Again, there is no mention here of dishonesty in the investigation.

 

53.          The Claimant appealed on 26 June 2024 [110]. This, letter again contains the Claimant’s apologies for the action. It makes no allegation of race discrimination against Mr Hollywood or Mr Jackson, and asks Mr de Oliveria for leniency.

 

54.          On 2 July 2024, the Claimant presented an “Appeal Statement” in which he again apologised for what he calls a “mistake” and alleged “many people” are taking part-time work outside of the First Respondent.

 

Appeal.

 

55.          The Claimant’s appeal was heard by Mr de Oliveria, at the Pomme D’or Hotel by way of a review of the process adopted by Mr Jackson and, I am told, a consideration of any new evidence. There was no new evidence.

 

56.          The appeal meeting took place on 2 July 2024 [115] the minutes of this meeting went unchallenged and I accept they are accurate. They record that Mr Hollywood had given permission to work outside of the Seymour Group, and the Claimant was aware of this [116]. I note this conflicts with what Mr Hollywood says in a file note prepared after the presentation of the Claimant’s claim form [122].

 

57.          Mr de Oliviera adjourned briefly and delivered his decision that same day. He upheld the decision to dismiss the Claimant [118]. The letter rejecting the claimants appeal expressly addresses the claimant’s length of service and sets out in numbered paragraphs the factors he considered. This includes that the Claimant ha chosen to deceive the Company and lie about his outside work.

 

58.          I am told the claimant attended the Immigration officer and was told by an official there that they could not believe the Claimant had been dismissed for this action. If this occurred, and I make no findings on it, as it is irrelevant for my purposes, the views of an official about the employment relationship are not of assistance in such circumstances.

 

59.          What is clear is that the First Respondent had contact with the immigration officer ad explained their decisions. They recommended the claimant for employment elsewhere on the island, despite the supposed concerns over the Claimant’s honesty [121].

 

60.          At some point the Claimant approached JACS who, he said, advised him of a race discrimination claim. he said he presented his claim as a result of that advice. I explained I did not want to hear about advice he had received from JACS as this was privileged. The Claimant did not, therefore explain anything more about what JACS had advised him.

 

THE LAW

61.          The Discrimination (Jersey) Law 2013:

a.              prohibits, amongst other things, direct discrimination (Article 6(1)).

b.              States that direct discrimination occurs where, because of race the claimant is treated less favourably than another person (Article 6(1));

c.              Race includes nationality (Schedule 1(2)(2)(b));

d.              Direct discrimination includes dismissing an employee or subjecting them to any other detriment (Article 10(c) and (e)).

 

62.          Article 61 of the Employment (Jersey) Law 2003 (the “Law”) states that an employee has the right not to be unfairly dismissed and states that it will be an automatically unfair dismissal for an employee to be dismissed because of, in this case, race (Article 70A).

 

63.          If the dismissal is not automatically unfair, Article 64 of the Law states that the employer is required to show a fair reason for the dismissal. The Respondent’s reasons for dismissing the Claimant were all related to misconduct. Misconduct is a potentially fair reason for dismissal (Article 64(2)(b)).

 

64.          I must decide whether the dismissal was fair or unfair which will depend on whether in the circumstances (which includes the size and administrative resources of the business) the Respondent acted reasonably or unreasonably in treating the conduct as a sufficient reason for dismissing the Claimant. I must make my decision in accordance with the principles of equity (fairness) and the substantial merits of the case.

 

65.          As misconduct is the reason for dismissal, I will be guided by the test set out in the English case of British Home Stores Limited v Burchell [1980] 1CR 303. The Respondent must show that:

 

(a)      it believed the Claimant was guilty of misconduct;

(b)      the person making the decision had in their mind reasonable grounds upon which to sustain that belief, and

(c)      at the stage at which the person formed the belief on those grounds, he or she had carried out as much investigation into the matter as was reasonable in the circumstances.

 

66.          As explained to the parties I must not substitute my own opinion for that of the Respondent. My job is to determine whether the Respondent has acted in a manner in which a reasonable employer might have acted. In other words, I must decide if the decision of the Respondent to dismiss fell within the band of reasonable responses that an employer might have adopted (Voisin v Brown [2007] JLR 141 at paragraph 22).

 

67.          Guidance on the principles to be applied when an employee alleges inconsistent treatment in an unfair dismissal case can be found in the English case of MBNA Ltd v Jones UKEAT/0120/15/MC, which applied the test set out in the earlier case of Hadjioannou v Coral Casinos Ltd [1981] IRLR In MBNA the EAT confirmed that where another employee commits similar (but not the same) misconduct but is not dismissed this will only make the claimant’s dismissal unfair where:

 

(a)      there is evidence that, by not dismissing employees in the past the employer has led the workforce to believe that certain categories of conduct will be overlooked or at least not dealt with by dismissal; or

(b)      where the decisions made in other cases support an inference that the stated reason for dismissal is not the real reason.

 

68.          Where the circumstances of the two employees are truly parallel this may support an argument that it was not reasonable for the employer to dismiss one employee if the other employee is not also dismissed, but some lesser penalty is applied.

 

CONCLUSIONS ON THE ISSUES

 

General

 

69.           Having regard to the findings of relevant fact, applying the appropriate law, and taking into account the submissions of the parties, I have reached the following conclusions on the issues the parties have asked me to determine.

 

Findings on the Issues

 

Discrimination: Protected Characteristic

 

70.          The protected characteristic relied upon is race, and in particular nationality.  The Claimant is a Kenyan national.

 

Direct Discrimination

 

71.          It is not in dispute that the:

a.              Second Respondent referred the claimant for a disciplinary hearing;

b.              Fourth Respondent dismissed the Claimant;

c.              Third Respondent failed to uphold the claimant’s appeal.

 

Did the Respondents treat the Claimant less favourably than they treated or would have treated the Claimant’s comparators who are not in materially different circumstances? The Claimant relies on the following comparators:

 

d.              Filipino female member of staff, called Jean Gill Pagunsan, who was working at Sea Fish Café; or

e.              Hypothetical employee

 

72.          For the reasons given above I found that Ms Pagunsan is not an appropriate comparator: she had not undertaken part time work since 2022 when the amnesty was declared

 

73.          Turning then to the hypothetical comparator: would a long-term employee, who was aware of the prohibition on undertaking second employment and the need to obtain permission before starting such work, have been treated more favourably than the Claimant was, I can find no direct evidence to support the argument that they would have not been referred for disciplinary hearing; dismissed or had their appeal rejected.

 

74.          I remind myself, however that discriminatory actions and intents do not often exist in the light and are often concealed and hidden. Having consider there is no direct evidence of less favourable treatment I turn to consider whether there is any unreasonable and unexplained conduct from which it would be capable of supporting an inference of discrimination. I have considered the misalignment of the Respondent’s various polices on this matter and the difference in account of Mr de Oliviera and Mr Hollywood as to Mr Hollywood granting permission to work or not. The latter of these two does cause me to pause and question what the Respondent’s position on is granting permission (particularly in light of the misaligned policies). However, I have not heard evidence on this point and cannot begin to analyze whether this could potentially support ay inference.

 

75.          I also considered the position of Mr Osio, who the claimant said had not been treated the same way as he had (e.g. Mr Osio had not been dismissed). Actually, this is incorrect and it appears the Claimant is wrong on this as Mr Hollywood tells me that, in fact Mr Osio had been dismissed for obtaining secondary employment. Mr Osio is also Kenyan. This caused me to pause, however I do not consider it sufficient to conclude that, on the balance of probabilities, there was discrimination here. The fact is that, of the employees I have heard of being dismissed for obtaining secondary work, both happen to be Kenyan. I have not herd of other relevant employees being “let off” such behaviour or being given lesser sanctions, that could make me question whether nationality was a relevant factor. Therefore, I do not feel it alone (or coupled with the difference in evidence over the granting of permissions) leads me to believe that Mr Hollywood demonstrated any improper motive of was influenced improperly.

 

76.          There is nothing in the evidence before me at all, that shows Mr Jackson or Mr de Oliveris were influenced improperly either.

 

If so, can the Claimant prove on the balance of probabilities that the Tribunal could properly and fairly conclude that the difference in treatment was because of race?

 

77.          Having concluded that there was no less favourable treatment, it is academic whether that treatment was because of race or not.

 

Unfair dismissal claim

 

Reason for the dismissal

What was the reason for the dismissal? When deciding on the reason for the dismissal, the Tribunal will decide, on the balance of probabilities and based on the evidence, what was at the forefront of the Respondent’s mind when it dismissed the Claimant.

If the reason or if more than one reason, the principal reason for the Claimant’s dismissal was his race, then the dismissal is automatically unfair.

 

The Respondent asserts that it was a reason related to conduct, which is a potentially fair reason for dismissal. All parties agree the Claimant was working for another employer part-time whilst employed by the First Respondent.

 

78.          For the reasons given above I conclude that race played no part in the Respondent’s decision to dismiss. Accordingly, the dismissal is not automatically unfair.

 

79.          I then consider whether the First Respondent had proven to me the reason for dismissal. I consider that they have. The Claimant’s behaviour in undertaking secondary work is clearly and demonstrably a reason that relates to conduct. They had this set of facts in their mind when they dismissed the claimant.

 

If the reason was the Claimant’s conduct, then did the Respondent hold the belief in the Claimant’s misconduct on reasonable grounds and following as reasonable an investigation as was warranted in the circumstances? The burden of proof is neutral here, but it helps to know the Claimant’s challenges to the fairness of the dismissal in advance and they are identified as follows:

 

a.       when was called to the meeting, the general manager Scott Hollywood, the investigator, was rude to him and did not show him respect and questioned you rudely to me;

b.       there was inconsistent treatment as Scott Hollywood did not recommend Jared Osio, another Kenyan National, be put forward for a disciplinary hearing despite Mr Osio also working part-time whilst employed by the First Respondent. 

 

80.          There was no criticism made of the process the Respondent undertook, indeed the Claimants own witness, Ms Ndungu, who attended the disciplinary and appeal meetings, was complimentary of the process undertaken by Mr Jackson and Mr de Oliviera and the way they facilitated the Claimant’s involvement.

 

81.          I also reject the two specific allegations of unfairness identified by the Claimant: Mr Hollywood was not rude to the Claimant as alleged or at all, Mr Hollywood had an investigation to undertake and was faced with an employee who (admittedly) lied to him during that meeting. If he was unhappy at that behaviour of the Claimant, and I make no findings on this, he has every right to be. This was a serious matter and the trust placed in hotel staff who have access to guests rooms and property, is at the core of the relationship.

 

82.          So far as Mr Osio is concerned, it is correct that, on strict reading, Mr Osio was not put forward for disciplinary hearing by Mr Hollywood, as it came out in evidence that h was in fact dismissed by Mr Hollywood for undertaking secondary work without permission. He was, therefore, treated the same way as the Claimant. The Claimant’s treatment was consistent.

 

Dismissal within range of reasonable responses

Was the decision to dismiss a fair decision, that is, was it within the reasonable range of responses open to a reasonable employer when faced with these facts?  The Claimant asserts that the sanction of dismissal was excessive and not reasonable in these circumstances. The Claimant is critical of the decision to dismiss as:

 

a.       Summary dismissal was hot appropriate;

b.       The Claimant’s mitigation was not taken into account; and

c.       Mr Jackson was critical of the claimant’s explanation for his obtaining a second employment

 

83.          Having decided the above I turned to consider whether the decision was within the band of reasonable responses. I remind myself here (as throughout this assessment of the fairness of a dismissal) I must not substitute my own view for that of the employer. Considering the particular allegations relied upon, I reject the assertion that the mitigation was not taken into account: the evidence shows it was discussed in the various meetings, was expressly referred to in the outcomes and the witness sate they considered it. On balance of probabilities they did, therefore, consider this.

 

84.          Mr Jackson was critical of the Claimant’s explanation for his obtaining second employment. He says the reason was not sufficient. Whilst harsh, perhaps not well worded and undoubtedly distressing for the claimant to hear, it is a conclusion that Mr Jackson was entitled to arrive at when considering the Respondent’s policies and procedure.

 

85.          I note that the dismissal letter and appeal letter do not say the Claimant was dismissed because of his proven dishonesty in the meeting, rather that this was a factor that led them to believe the claimant was aware of what he was doing.

 

86.          Looking, therefore at the allegation of the Claimant undertaking unauthorised secondary employment, I consider that the Claimant’s conduct does amount to gross misconduct as defined in the disciplinary policy, again I note the misalignment of the Respondent’s policies here as well.

 

If the Respondent did not use a fair procedure, would the Claimant have been dismissed in any event?  If so, to what extent/when?

87.   Havin found the dismissal that was fair, and no procedural errors, this is academic.

 

If the dismissal was unfair, did the Claimant cause or contribute to the dismissal by culpable or blameworthy conduct? This requires the Respondent to prove, on the balance of probabilities, that the Claimant actually committed the misconduct alleged.  The Respondent relies on the action of the Claimant that led to the disciplinary change, namely undertaking part-time employment with another employer. If so, is it just and equitable to reduce any award and, if so, by what amount?

 

 

88.          On the findings of fat I have made, I would have concluded the claimant committed culpable and blameworthy conduct: namely the undertaking of secondary work, without permission when knowing his employer’s position on this.

 

89.          This conduct caused his dismissal, there was no other reason for the First Respondent to wish to dismiss the Claimant.

 

90.          I would consider it just and equitable to reduce his compensation by 100%

Breach of contract – wrongful dismissal: Summary Dismissal

 

91.          It is not in dispute that Respondent dismissed the Claimant without notice. I have found the Respondent was entitled to dismiss the claimant summarily in these circumstances.

 

92.          Accordingly, the Claimant’s claim here fails

 

 

Conclusions on the Complaints

 

93.          I therefore conclude that the Claimant was not unfairly dismissed, wrongfully dismissed or subject to any acts of discrimination by the Respondents, and so the claims are dismissed.

 

 

Mr M Salter, Deputy Chair                                                                                        Date:  3 February 2025