Mrs T WatkinsClaimantWhitbread Group plcRespondent
Before
Employment Judge S MooreMs R Paige (instructed by Solicitor) for respondentDate 30 December 2025
REASONS
[1]The ET1 was presented on 22 May 2025 following ACAS early conciliation starting on 2 April 2025 and ending on 14 May 2025. The claimant brought a claim of unfair dismissal. There was an agreed bundle of documents and additional documents relevant to remedy provided by the claimant as well as a copy of a written warning for a Ms P Jeavons. The Tribunal heard evidence from the claimant and the respondent’s witnesses:• Michelle Johnson;• Paul Brooks;• Damian Wilson.[2]Witness statements for Ms P Jeavons and Ms L Windsor were exchanged but they were not called to give evidence in person.[3]Due to a failure with the recording equipment in the hearing room, the record of the oral judgment provided on 28 October 2025 was not retained. As such these reasons have been reproduced from Judge Moore’s note of the judgment prepared in readiness to deliver the oral judgment. This has contributed to a delay in providing these written reasons.
Findings of fact
[4]The claimant commenced employment with the respondent on 11 December 1995. At the time of her dismissal she had recently been promoted to Hotel Manager for the Premier Inn located in Little Mill, Pontypool. Until the events in this claim the claimant had a long standing career having previously been the Deputy Manager for approximately four years and had unblemished employment history. Policies and Procedures Fire Safety Policy[5]This was set out in a “Statement of Intent” which stated all Team Members must contribute to and comply with fire safety procedures. Team members must not interfere with or misuse anything provided in the interests of fire safety. The responsibility for implementing the Fire Safety Policy lies with all Directors, Managers and Team Members who were expected to plan and organise safe systems of work, maintain records and regularly review fire safety performance.[6]Hotel Managers responsibilities were listed. In summary they were to be fully conversant with the requirements of the Fire Safety Policy and associated procedures including any fire engineering arrangements at their hotels, ensuring that the day to day tasks associated with the fire safety management system are diligently undertaken and ensuring adequate information, instruction and training is delivered to Team Members and reviewed as necessary. The responsibilities for Deputy Managers were as above absent the training requirement.[7]The claimant accepted she had read and understood all of the relevant procedures save she would not accept that she was responsible for members of staff’s actions unless they were new employees. Training records also confirmed that the claimant had attended multiple fire safety courses and refreshers.[8]The respondent’s fire alarm testing and records are operated in a system called Co-Pilot (not to be confused by the Microsoft AI app by the same name). When a fire alarm test is due, a notification in the system turns red signalling management must carry out a test. The duty manger must carry out the test accompanied by a colleague then sign off that the test has been completed in the Co-Pilot system. Compliance visit 17 February 2025[9]A Regional Compliance Officer and visited the Pontypool Hotel to undertake a routine compliance check. This identified that fire alarm tests had been done at unusual times such as before 7am. In order for the test to be signed off on Co-Pilot, the fire alarm would need to have been activated. It therefore appeared unusual that the records showed that the Claimant had been testing the alarm in the very early hours of the morning which would have awoken guests. Typically, the tests would take place round 12pm as this aligns with check out time and would cause minimum disruption to guests. This prompted an investigation by Ms Johnson, who was the Multi Site Hotel Manager responsible for the Pontypool hotel.
The Law
[10]Ms Johnson met with the claimant on 24 February 2025. It is agreed there was no warning of the investigatory meeting and it took place in the breakfast room, after service but in a location that could have been accessed by other staff. There was a dispute as to whether other staff were actually present. I find they may have been but nothing turns on this for reasons I set out below under conclusions.[11]Meeting notes were taken at the meeting which confirm the claimant accepted that except for a couple of occasions the actual tasks had been performed if signed off in co-pilot. She accepted on a couple of occasions she had done the test the following day if something had happened after sign off such as an incident where the police attended and she had forgotten.[12]Ms Johnson reviewed reports from the fire panel showing no tests had been undertaken for significant periods of time. She therefore contacted the fire alarm company to come and inspect the system who did so and reported it was working normally.[13]Ms Johnson met the claimant again on 12 March 2025. The claimant maintained she was sure the checks had been completed. She asserted that there was pressure from the management to clear the reds in co-pilot.
Conclusions
[14]Ms Johnson decided to review the CCTV footage from the previous six months as there was a camera overseeing the fire testing panel. She discovered at least 4 occasions where the claimant had been on shift and recorded she had undertaken a test but the CCTV showed no such tests had been undertaken. She therefore decided that the claimant would be suspended on 13 March 2025. Ms Johnson was criticised for not suspending the claimant sooner, suggesting that this meant the incident was not viewed as serious at the time. Ms Johnson explained that up until she reviewed the CCTV she has been assured by the claimant that she had done the tests but when the CCTV showed she had not, she concluded there were grounds to suspect the claimant had not been honest and this called into question the respondent’s ability to trust the claimant as the hotel manager. Other staff who had been discovered engaging in similar practice were not suspended as the risk could be managed by having another hotel manager on site. It transpired that all of the staff were signing off the task before doing the actual tests. Some were relying on post it notes to remind them to do the actual tests some on memory. This plainly was unsafe, noncompliant and potentially could have had extremely serious consequences.[15]Ms Johnson covered some of the claimant’s absence during suspension. She also rota’d other duty managers to cover the claimant’s shifts and appointed Ms Williams another hotel manager to manage the hotel whilst the claimant was suspended. The claimant’s shifts were left pending in the rota covered by other managers.[16]Ms Johnson prepared a disciplinary investigation report and on 18 March 2025 produced a letter inviting the claimant to a disciplinary hearing and an accompanying pack of documents. In the letter the claimant was asked to inform Ms Johnson if she needed any adjustments to support for example if she had a disability. She was also referred to the EAP programme which was a counselling / support helpline.[17]Ms Johnson had been specifically told by the claimant that she did not want her to attend her home personally but Ms Johnson did so, posting the above through the claimant’s letterbox. Her explanation was she was concerned the claimant would have the pack in sufficient time for the disciplinary hearing scheduled on 21 March 2025.[18]The claimant was faced with two allegations: i. On four occasions (31/10/24, 14/11/24, 16/1/25, 06/02/25) that she may have seriously breached Health & Safety by failing to complete the task of weekly fire alarm check which may constitute gross misconduct and therefore if there is a disciplinary case to answer. This is a potential breach of the Fire Safety policy. ii. To establish if there are reasonable grounds to believe that on the above dates the claimant may have falsified records by signing off a health & safety task as complete without physically completing the task, which may constitute gross misconduct and therefore if there is a disciplinary case to answer. This is a potential breach of the Fire Safety policy.[19]It was explained that both allegations may have the potential to lead in a breakdown in the trust and integrity held between the respondent and the claimant in her role as a Hotel Manager.[20]The disciplinary hearing took place on 21 March 2025 and was conducted by Mr Brooks, Multi Site Hotel Manager. The claimant was accompanied by a colleague Ms Williams. She had prepared a statement and provided it to Mr Brooks in which she stated she had genuinely believed she had carried out the tests but discovering that had not been the case had been deeply upsetting and she took full responsibility. The claimant set out mitigating circumstances some of which are very personal involving family members, so I shall not repeat them in this judgment, but I accept they were serious personal matters involving bereavement, health issues of the claimant and a serious crime perpetrated on a family member.[21]The claimant also asserted that the compliance visit had been communicated as a supportive process after which there would be an action plan with timeframes and referenced pressure from higher management to clear the red codes but could not be specific as to who had applied this pressure. It is noted that prior to the claimant becoming Hotel Manager, her daughter had held the position.[22]Mr Brooks adjourned the hearing to reach his decision. I am satisfied he did so in a thorough and reasonable way and took into account what the claimant had said. With regards to the mitigation, Mr Brooks concluded as follows: The Claimant hadn’t put forward any convincing mitigation for her actions…... Although I did take this into consideration, ultimately she didn’t take responsibility and take time off if she felt that was necessary. She continued to attend as a manager and repeatedly fail to properly fulfil these key tasks.[23]As regards the appropriate sanction, Mr Brooks considered a final written warning but concluded as follows: Perhaps if this was a one-off occasion or mistake then I would have opted for this sanction, but the breaches were repeated and she was responsible for creating a positive and safe culture in the hotel amongst her team. For significant periods of time the alarm was not being tested which means that if there was a fire there could have been a fault that wasn’t picked up on and this could have had catastrophic consequences. The falsification of records was also a big concern in terms of trusting her. For these reasons, a final written warning was not appropriate. We do take health and safety breaches seriously as a business. Other Hotel Managers have been dismissed for lesser H&S breaches. Given the importance of health and safety, especially in hotels where we could have hundreds of guests staying, it is right that we apply heavy sanctions for deliberate breaches.[24]A number of other staff were facing disciplinary action arising from the same circumstances as the claimant. Mr Brooks also conducted their disciplinary hearings but none were dismissed. Mr Brooks reasoning for dismissing the claimant was that as Hotel Manager, the claimant was setting this example for all her team. This presented a huge element of risk by signing off tasks before completing them. He considered the claimant was making this an acceptable practice.[25]Mr Brooks also took into account the claimant’s length of service and whether this should lead to a lesser sanction but concluded this meant she should fully understand the correct processes and standards of behaviour. He decided dismissal was a fair outcome. Mr Brooks evidently did not take the decision lightly. I found him to be very credible. I fully accepted his explanation as genuine as to why he had reached that decision. Mr Brooks found it was not an easy decision and felt sorry for the Claimant given how upset she was but did not see that any other outcome was appropriate due to the seriousness of her conduct.[26]On 22 March 2025 Mr Brooks telephoned the claimant and informed her that his decision as she would be summarily dismissed for gross misconduct and this was followed with a letter confirming the decision with reasons also dated 22 March 2025.[27]The claimant appealed the decision on 25 March 2025. The grounds of appeal were in summary: i. The compliance visit issue (set out above); ii. Inconsistent approaches arising from the compliance visits in other hotels; iii. Investigation process; iv. The claimant’s shift of Tuesday 25 March was covered prior to the disciplinary meeting held on Friday 21 March, suggesting predetermination of the disciplinary outcome; v. Mitigating Circumstances; vi. The dismissal was unfair citing the outcomes of compliance visits inconsistences, a lack of consideration of the impact on the claimant’s mental health as a result of not following a fair process. Ms Johnsons’ visit to the claimant’s home was unnecessary and constitutes trespassing, as well as had a significant impact on the claimant’s mental health at that time; vii. There were no grounds to conclude the claimant might do the same act again as had been suggested by Mr Brooks.[28]Mr Wilson, Regional Operations Manager was appointed to hear the appeal and it took place on 1 April 2025. The claimant was accompanied by Ms Williams. I had sight of the appeal notes and it was common ground that it was conducted fairly and in a reasonable way. Mr Wilson adjourned to reach his decision. He checked with employee relations to see if any other hotel manager had had a lesser sanction for the same conduct and was informed no. He concluded that he could not decide it was acceptable for her to falsely record fire alarm checks that had not been carried out, even if it was a mistake. It simply was not an action that could be condoned when it could have such drastic consequences.[29]On 2 April 2025 Mr Wilsons telephoned the claimant to advise he was upholding the dismissal and his reasons. Mr Wilson acknowledged that the documents should not have been hand delivered to the claimant’s home. His decision was confirmed by email in a letter of the same date. Mr Wilson had considered all of the claimant’s grounds of appeal in a reasonable way and had reasonable grounds to reject them. As with Mr Brooks, Mr Wilson was a credible witness who had taken the process and decision seriously and reached careful, reasonable conclusions.
The Law
[30]The relevant law in relation to the unfair dismissal claim is set out in Section 98 of the Employment Rights Act 1996. In this case, the respondent relies on the potentially fair reason of conduct as the reason for dismissal.[31]In a conduct dismissal case British Home Stores v Burchell [1980] ICR 303, the Court of Appeal set out the criteria to be applied by Tribunals in cases of dismissal by reason of misconduct. Firstly the Tribunal should decide whether the employer had an honest and genuine belief that the employee was guilty of the dishonesty in question. Secondly the Tribunal has to consider whether the employer had reasonable grounds upon which to sustain that belief. Thirdly at the stage at which the employer formed its belief, whether it has carried out as much as an investigation of the matter as was reasonable in all of the circumstances.[32]In J Sainsbury’s v Hitt [2003] ICR 111, the Court of Appeal held that the range of reasonable responses test applied as much to the question whether the investigation into the suspected misconduct was reasonable in all the circumstances as it did to the reasonableness of the decision to dismiss for the conduct reason.[33]The relevant authorities in relation to reasonableness under Section 98 (4) were considered by the EAT (Browne-Wilkinson J presiding) in Iceland Frozen Foods v Jones [1982] IRLR 439. The test was formulated in the following terms: ''Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the Industrial Tribunal to adopt in answering the question posed by [ERA 1996 s 98(4)] is as follows. the starting point should always be the words of [s 98(4)] themselves; in applying the section an Industrial Tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair; in judging the reasonableness of the employer's conduct an Industrial Tribunal must not substitute its decision as to what the right course to adopt for that of the employer; in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another; the function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair'.[34]In assessing whether the Claimant’s conduct amounted to gross misconduct that conduct must be deliberate wrongdoing or gross negligence. In the case of deliberate wrong doing it must amount for wilful repudiation of the express or implied term of the contract (Sandwell and West Birmingham Hospitals NHS Trust v Westwood UKEAT/0032/09).[35]If the dismissal is procedurally unfair the Tribunal must assess the percentage chance of the Claimant being fairly dismissed (Polkey v AE Dayton Services Ltd [1987] IRLR 503, [1987].[36]The Tribunal must also consider whether, under S207 (2) TULRCA 1992 there is any provision of the ACAS Code of Practice on disciplinary procedure which appears to be relevant.[37]Lastly whether the Claimant’s basic and or compensatory award should be reduced under S122 (2) and S123 (6) ERA 1996. The wording of the two provisions are not identical and differing reductions can be made in principle. S122 (2) provides that where the tribunal considers any conduct of the Claimant before the dismissal was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly. S123 (6) provides that where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.
Conclusions
[38]The reason for dismissal was not in dispute. The respondent has shown the reason was misconduct which is a potentially fair reason.[39]The claimant had accepted that she had failed to undertake the fire alarm tests on four occasions and had falsely signed off the tasks as completed. The elements of the Burchell tests are satisfied. This was a case that was squarely about whether the decision to summarily dismiss the claimant was within the band of reasonable responses.[40]I considered the claimant’s reasons as to why the dismissal was unfair.[41]Whilst I agree the delivery of the investigation pack to the claimant’s house and conducting an investigation meeting in a room that was not private may not have been ideal , I did not consider this could have any bearing on the outcome.[42]I also do not consider that the fact the compliance visit was presented as supportive affects the fairness. If serious breaches were found, as in this case, that cannot prevent the respondent from acting on those serious matters.[43]Regarding the claimant not initially being suspended, I do not consider this to affect the fairness of the decision or the band of reasonable responses. The explanation was reasonable as Ms Johnson initially accepted the claimant advised she had performed the tests. She only decided to suspend when the CCTV revealed she had not.[44]There was no evidence to support a culture of pressure to clear red codes. The documents before me showed the opposite, consistent frequent and documented training on all procedures including the fire safety policy.[45]The fact that the investigation did not start within 48 hours and that no advance notice was required of the initial investigation meeting had no impact on the outcome.[46]The fact that the claimant’s shift was covered on the rota did not evidence pre determination of the decision but was sensible planning and rotas would need to be prepared in advance in any event.[47]There was no evidence of inconsistent decisions in respect of other hotel mangers. As regards the other staff who received final written warnings, they did not hold the position of hotel manager. The respondent had to have trust in the most senior person responsible for the safety of guests and staff that they would follow the fire safety procedures and not falsify the records.[48]In regards to the band of reasonable responses I remind myself that I must not substitute my decision with that of the employer. I took into account the claimant’s unblemished service long service record and the mitigating factors as well as the claimant’s acceptance of responsibility and that there was no evidence she would repeat the misconduct. Another employer may have decided not to dismiss the claimant. However in my judgment the decision to dismiss was within the band of reasonable responses when considering the potentially fatal consequences of the misconduct not only for the public staying at the hotel but the staff and the respondent if there had been a fire and it emerged the fire safety checks had not only not happened but that records had been falsified.[49]For these reasons the claimant’s claim is not well founded and is dismissed. Approved by:[1]The claim was heard at Newport on 27 and 28 October 2025. The claimant’s claim for unfair dismissal was dismissed. oral reasons were provided on 28 October 2025 and a written record of the judgment was dent to the parties on 28 October 2025.[2]On 31 October 2025 the respondent made an application for costs. The claimant objects.[3]On 6 January 2026 the parties confirmed they were content for the costs application to be dealt with without a hearing. A chambers hearing was arranged on 27 January 2026 for Judge Moore to reach a decision on the application. Grounds for the application[4]The respondent seeks the sum of £7,048.90 plus VAT, being the amount of costs incurred by the Respondent from the 24 July 2025, the day after the costs warning letter to date. The application was made on the basis that the Claimant acted unreasonably when she insisted upon moving to a final hearing in respect of her claim of unfair dismissal.[5]The respondent wrote to the claimant on 23 July 2025, setting out the factual and legal basis upon which they believed it was highly unlikely that she would succeed in her claim before the Tribunal and put the Claimant on notice that if she insisted upon pursuing her claim, and if they were dismissed for substantially the same reasons as envisaged, they would make an application for a costs order.[6]Further to the exchange of witness statements, the Respondent sent the Claimant a further letter reminding her of the costs associated with the claim and again pointed out the issues in her claim, being that dismissal for such a serious allegation which she had admitted to was not out of the band of reasonable responses.[7]The basis of the application was therefore on unreasonable conduct and the claim had no prospects of success. Claimant’s response[8]The claimant submitted that she genuinely believed she had a reasonable prospect of success in pursuing her claim and could not have known that her case would ultimately be judged as not well founded. The claimant relied upon advice and provided evidence she had an appointment with the Speak Easy Law Centre, a provider of free legal support and said she was encouraged to continue with her claim. Regarding the costs warning letters the claimant submitted that there is widespread concern that such letters may be used as a tactic to deter claimants from proceeding with claims and she did not disregard the Respondent’s correspondence lightly.[9]I had limited information about the claimant’s means other than she has only been able to secure a catering assistant role resulting in a significant reduction in income and financial strain on her household. The Law[10]The power to award costs is set out in Part 13 of the Employment Tribunal Rules of Procedure 2024 (“the Rules”). The relevant Rules are 74, 76 and 78. 74 When a costs order or a preparation time order may or shall be made(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing.(2) The Tribunal must consider making a costs order or a preparation time order where it considers that— (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, (b) any claim, response or reply had no reasonable prospect of success, or (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins.(3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned. 76 The amount of the costs order (1) A costs order may order the paying party to pay— (a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b) the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined— (i) in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by the Tribunal applying the same principles; (ii) in Scotland, by way of taxation carried out either by the auditor of court in accordance with the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019, or by the Tribunal applying the same principles; (c) another party or a witness, as appropriate, a specified amount in respect of necessary and reasonably incurred expenses for the purpose of, or in connection with, an individual's attendance as a witness at a hearing; (d) an amount agreed between the paying party and the receiving party in respect of the receiving party's costs. (2) Where the costs order includes an amount in respect of fees charged by a lay representative, for the purposes of the calculation of the order, the hourly rate applicable for the fees of the lay representative must not exceed the rate under rule 77(2) (the amount of a preparation time order). (3) A costs order under sub-paragraphs (b) to (d) of paragraph (1) may exceed £20,000.[11]I was not referred to any authorities by the parties. The following are the general authorities I have had regard to in reaching my decision.[12]Radia v Jefferies International Ltd [2020] IRLR 431, EAT sets out the approach go be taken when considering a costs order. The first question for a tribunal considering a costs application is whether the costs threshold is crossed, in the sense that at least one of r 76(1)(a) or (b) is made out. If so, it does not automatically follow that a costs order will be made. Rather, this means that the tribunal may make a costs order, and shall consider whether to do so. That is the second stage, and it involves the exercise by the tribunal of a judicial discretion.[13]A Q Ltd v Holden [2012] IRLR 648, EAT provides that the fact a party is a litigant in person is factor to take into account when assessing the threshold test. “Unreasonable” has an ordinary, everyday, objective, meaning (Dyer v Secretary of State for Employment EAT 183/73). It can include pursuing an unmeritorious claim and one can have regard to what the paying party knew or ought to have known: Keskar v Governors of All Saints CofE School [1991] ICR 493.
Conclusions
[14]This was a claim about the band of reasonable responses. The claimant pointed to other employees who had received lesser sanctions. In paragraph 48 of the judgment I concluded as follows: “In regards to the band of reasonable responses I remind myself that I must not substitute my decision with that of the employer. I took into account the claimant’s unblemished service long service record and the mitigating factors as well as the claimant’s acceptance of responsibility and that there was no evidence she would repeat the misconduct. Another employer may have decided not to dismiss the claimant. However in my judgment the decision to dismiss was within the band of reasonable responses when considering the potentially fatal consequences of the misconduct not only for the public staying at the hotel but the staff and the respondent if there had been a fire and it emerged the fire safety checks had not only not happened but that records had been falsified.”[15]I consider that the threshold is met. It was objectively unreasonable to pursue a claim for unfair dismissal given the admitted misconduct.[16]I therefore go on to consider whether to exercise my discretion and order for costs and have considered the following factors when reaching my decision: a) The claimant was given a warning about the costs consequences of continuing to pursue the claim. However the claimant understood this was a tactic to persuade her to give up her claim and the claimant was a litigant in person and took advice and relied upon that advice; b) The claimant had a long standing and unblemished career and the issue over the range of reasonable responses along with differing sanctions to other employees led her to conclude her claim was with pursuing and in good faith decided to continue with her claim; c) It seems unlikely that the claimant does not have the financial means to meet a preparation time order even if made; d) Costs orders in the Employment Tribunal are the exception rather than the rule. The Employment Tribunal is not a jurisdiction where costs follow the event. There is no legal aid to enable litigants in person to obtain advice. e) For the above reasons I do not consider this claim falls into the exception.[17]Having balanced the above factors I have decided not to exercise my discretion and refuse the application for costs. Approved by