MISS J BUSHBY v 1-2-1 SWIMMING LTD [2006] UKEAT 0024_06_0903

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2006] UKEAT 0024_06_0903

Case No Appeal No. UKEAT/0024/06

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS J BUSHBYAPPELLANT

1-2-1 SWIMMING LTDRESPONDENT

Before

Mrs Justice Cox Ms V Branney Ms V Branney Mr T Stanworth

Date 9 March 2006

[1]APPEARANCES For the Appellant MR D ROBINSON-YOUNG (Of Counsel) Instructed by: Messrs Lawson & Thompson Solicitors 30 Front Street Newbiggin by the Sea Northumberland NE64 6PL For the Respondents MR J ENGLISH (Solicitor) Messrs Smithson Clarke Solicitors Ward's Buildings 31-39 High Bridge Newcastle upon Tyne NE1 1EW SUMMARY Unfair Dismissal Appeal v ET dismissal of complaint of UD under s.100(1)(c) ERA (employee having raised health and safety concerns). Crucial finding of fact underpinning decision as to the reason or principal reason for dismissal was unsupported by the evidence contained in the agreed note. Appeal allowed and case remitted. THE HONOURABLE MRS JUSTICE COX This is an appeal from a judgment of the Newcastle Employment Tribunal promulgated on 12 October 2005, after a hearing which took place on 8 August 2005, in which the Tribunal dismissed the Claimant's claim of unfair dismissal pursuant to the provisions of section 100(1)(c) of the Employment Rights Act 1996 .

[2]This section provides:

"(1) An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if the reason, (or if more than one, the principal reason) for the dismissal is that: (c) …being an employee at a place where- i) there was no [representative of workers on matters of health and safety at work] or safety committee or; ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer's attention by reasonable means, circumstances connected with his work which he reasonably believed were harmful, or potentially harmful to health or safety…"

[3]The Appellant contends that there was no evidence to support a crucial finding of fact which, it is said, underpins the Tribunal's conclusion as to the reason for her dismissal. The Respondents argue firstly, that there was such evidence and, secondly, that the relevant findings of fact were not in any event crucial to the Tribunal's reasoning, that the decision cannot be impugned and that this appeal should therefore be dismissed.

[4]The relevant facts are these and in view of some confusion in terms of the evidence that emerged before the Tribunal it will be necessary to look at these in a little more detail than would otherwise be the case.

[5]The Claimant was employed by the Respondents, a small company with limited administrative resources, as a swimming instructor, commencing her employment on 15 February 2004. The Respondents provide swimming tuition at a small private swimming pool but they also organize parties from time to time. These were often children's birthday parties, referred to as pool parties, and often involving children under 5 years of age. It was common ground that at these premises there was no representative of workers on matters of health and safety at work nor was there any safety committee.

[6]The Tribunal found that at the time of the Claimant's appointment she was told she would be expected to assist at these pool parties. However, when the pool parties commenced in about April 2004, the Claimant raised with Paul Stocks, Managing Director of the Respondents, her concerns that she was not qualified as a life guard which she regarded as being the appropriate qualification for assisting with children's pool parties.

[7]The findings of fact of the Tribunal which lie at the heart of this appeal are those set out at paragraphs 6.6 to 6.8 of their reasons as follows:

"6.6 Mr Stocks, on behalf of the respondent, made enquiries as to the requirement for lifeguards and discovered that due to the small size of the respondent's pool (9.6mx 5m making a total area of some 48 sq m) lifeguards were not required to be present at the pool parties. This is apparent from the guidance issued by the Health and Safety Executive, "

Managing Health and Safety at Swimming Pools" that was before the Tribunal, especially at page 50 which shows one or more lifeguards being required at pools with an area in excess of 170 sq m. 6.7 Mr Stocks assured the claimant that the size of the respondent's swimming pool was such that qualified lifeguards were not required to supervise the pool parties. Instead, he arranged to have two attendants present at the pool parties one of whom, he intended, would have been, at times, the claimant. 6.8 In subsequent months, the claimant worked at pool parties on at least two and possibly three occasions. She said that she was not happy about attending the pool parties in the capacity of a lifeguard although Mr Stocks continued to reassure her that there was no requirement for qualified lifeguards to be present. Thereafter the claimant made excuses to avoid attending pool parties."

[8]As the Tribunal found matters came to a head in January 2005. On 14 January, Mr Stocks sent a text message to the Claimant stating that she was required to attend at a pool party on the following day that is Saturday 15 January. The Claimant replied by text message that she could not attend that party because she was going out and needed to leave work on time. Another text message came back from Mr Stocks, in reply, stating that the requirement to work at pool parties was going to be part of the written contract of employment that he was producing and that if she did not work at the parties, she could look for another job. That message was reinforced by Mr Stocks in a subsequent text message, also sent on that Friday, that if she was not at work the next day, she would be required to attend an official hearing. None of the text messages from either of Mr Stocks or the Claimant made any reference to the Claimant attending the party as a lifeguard; indeed in her evidence before the Tribunal the Claimant had explained that she had only assumed that she would have had to have worked as a lifeguard because that was the basis upon which she had been asked to attend pool parties previously.

[9]During the course of the several exchanges that there were between the Claimant and Mr Stocks on that Friday 14 January, the Claimant had made it clear that not only would she not work at the pool party on the following day but that she would refuse to undertake such work in the future. There was a telephone discussion between the Claimant and Mr Stocks during which the Claimant alleged that Mr Stocks had sworn at her; although he denied that. There was then a meeting which the Claimant attended with her parents and at which the Tribunal found that the Claimant expressed to Mr Stocks her unhappiness at working at the pool parties because she was not a lifeguard.

[10]Matters were not resolved, however, and the Claimant did not attend the pool party on the following day. Over the weekend, as the Tribunal found, Mr Stocks decided to dismiss the Claimant which he did by letter of 17 January 2005. The stated reason for dismissal was that the duty of trust and confidence had broken down between the Claimant and Mr Stocks which he felt would have a detrimental effect on his small but expanding business. In evidence he explained to the Tribunal that that was due to the Claimant having alleged in front of her parents, falsely in his opinion, that he had sworn at her during the course of their telephone conversation on the previous day. Although an appeal appears to have been offered and initially fixed, in the event no appeal took place.

[11]The Claimant contended that she had been unfairly dismissed pursuant to the provisions of section 100(1)(c) of the 1996 Act (to which we have already referred) and the Tribunal correctly identified the issues for them to determine, namely what was the reason, or principal reason for the Claimant's dismissal and was it the reason set out in section 100(1)(c) of the Act? They directed themselves correctly on the law and there is no dispute as to the correctness of the approach they adopted, as set out in paragraphs 11 and 12 of their reasons, with the reference in particular to the case of Balfour Kilpatrick Ltd v Aitcheson & Others

[2003] IRLR 683

[12]In paragraph 13 the Tribunal expressed themselves satisfied on the evidence that the Claimant had brought to the Respondents' attention circumstances connected with her work which she reasonably believed were harmful, or potentially harmful, to health and safety and that she had done so, both in April 2004 and, significantly, at the meeting on 14 January 2005. They were also satisfied that she had brought these matters to the Respondent's attention by reasonable means, as they make clear at paragraph 14.

[13]However, in relation to the reason for the Claimant's dismissal they concluded as follows at paragraph 15:

"The Tribunal was satisfied that the principal reason for dismissing the claimant was that she had refused to work at a pool party on Saturday 15 January and had indicated that she would continue to refuse such work in the future. In the opinion of the Tribunal, the principal reason was not (as the respondent had maintained) that there had been a so-called breakdown of trust and confidence between the parties against a background of concerns about the claimant's performance nor was it (as the claimant had maintained) that she had brought to her employer's attention circumstances connected with her work which she reasonably, believed were harmful or potentially harmful to health or safety. Indeed it was difficult to accept that the claimant could have genuinely continued to maintain such concerns as she had about health and safety issues at her work having been assured as long ago as in April 2004 that qualified lifeguards were not required to attend at the swimming pool due to the size of that swimming pool. Thus, the principal reason for the dismissal of the claimant was simply that she refused to work at pool parties, which had been explained to her at the outset of her employment would be a requirement of that employment."

[14]In relation to the central point in this appeal, the starting point in our view is the Respondents' ET3 and the grounds of resistance to the claim which were never the subject of any application to amend and which were therefore the case on which the Respondents went to trial. At paragraph 3 the Respondents contended that:

"3 As part of her duties, the Claimant was expected to teach swimming to children and adults and assist in supervising pool parties, usually held on a Saturday. The Claimant was not expected to work as a lifeguard and was never asked to. In particular, the Claimant did not attend pool parties as a lifeguard."

[15]At paragraph 4 the Respondents contended that there were a number of concerns about the Claimant's attitude generally. These were unrelated to what we will call the lifeguard issue and, as the Tribunal found, had not been raised with the Claimant as concerns at the time and were clearly regarded by them as irrelevant.

(b) was said to be that the Claimant had:

"refused to stay late [on an occasion in October 2004], in order to assist clearing away after a pool party"

And that she had:

"left the lifeguard to clear up alone which was a clear breach of the Respondent's health and safety procedures."

And that:

"The lifeguard had to seek assistance from the pool owner's staff."

[16]It was also expressly pleaded at paragraph 5 that:

"5. The Respondent did not ask the Claimant to work as a lifeguard on Saturday 15/01/05. The Claimant was asked to assist the lifeguard at a pool party. The Claimant refused."

[17]In relation to the reason for dismissal it was contended at paragraph 11 that the Claimant was dismissed because of the breakdown of trust and confidence caused by her false allegations of verbal abuse over the telephone and, further that:

"….the Claimant was unwilling to fulfi1l her contractual duties by assisting (under supervision)."

[18]At paragraph 12 it was denied that the Claimant was dismissed for any reason relating to a health and safety matter; specifically it was said that the Claimant was not asked to work as a lifeguard and did not do so. It follows therefore that it appeared to be no part of the Respondents' case, in resisting the claim, that no lifeguard whatsoever was required because of the size of his swimming pool or that Mr Stocks had assured the Claimant that this was the position. On the contrary it was the Respondents' case that lifeguards were both required and supplied and that the Claimant, who was not qualified as a lifeguard, had only been asked to assist the lifeguards at the pool parties.

[19]No application was made at any stage to amend these grounds of resistance. Witness statements were then exchanged in the usual way for the hearing. In paragraphs 3 and 4 of his witness statement, which he read to the Tribunal as his evidence in chief, Mr Stocks said as follows:

"3. Jennifer was employed as a swimming teacher. Part of her duties would include acting as a pool attendant. 4. Jennifer was not employed as a lifeguard. I knew that she was not qualified as a lifeguard. It had been my hope that she would qualify as a lifeguard when she was working for me. I have a number of other employees who are qualified as lifeguards. I had planned for Jennifer to train as a lifeguard in the first six months of her employment. However, this didn't happen."

[20]At paragraph 7, he said:

"7…At every pool party I will have at least two poolside attendants, one of whom is a qualified lifeguard. Occasionally, that includes me…For each pool party, the pool capacity is 16. Of the 16, I require at least three adults present so that in total there are five adults supervising 13 children."

[21]Most of his statement thereafter dealt with his concerns as to the Claimant's attitude generally, to which the ET3 had referred, which the Tribunal ultimately regarded as irrelevant. In paragraph 14 he said in relation to the telephone conversation on 14 January:

"…I explained to Jennifer that as she had agreed to work pool parties in the past and I needed all staff to be willing and able to work at pool parties on Saturday afternoons, that if she didn't want to work on that Saturday afternoon then she should seriously consider her position. I said to her, "

If you are not prepared to do them, then you can look for another job." At that point, she put the phone down on me"

[22]In relation to the meeting with her parents, he said at paragraph 17:

"I had told her that as soon as she had a written contract, she would be required to do the pool parties. I had told her that if she refused to work pool parties, her job was at risk. I told her this again at the meeting."

[23]He gave as his reason for dismissing her at paragraph 25 the fact that:

"…she had accused me of swearing at her and then lying to her, in front of her parents. I felt that our working relationship could not survive that."

[24]We therefore agree with Mr Robinson-Young, appearing for the Appellant Claimant, that as at the date of the Tribunal hearing, the Respondents' state of knowledge of the position consistent with their pleaded case was expressed to be that lifeguards were both required and supplied by him. The Respondents' case was that the Claimant was not being required to work as one of the lifeguards but merely to assist the lifeguards who did attend and that she had known about this and had accepted it from the commencement of her employment. She was dismissed for an entirely different reason, which had nothing whatsoever to do with any health and safety concerns, namely the breakdown of their working relationship and the loss of trust and confidence.

[25]The Claimant's case throughout was that the Respondent was operating pool parties for children at a pool when a lifeguard was required, without having properly trained lifeguards in attendance, and that she was being asked to attend as a lifeguard, and was in fact being paid as a lifeguard, although only being qualified as a swimming instructor. It was never put to her in cross-examination at the hearing that lifeguards were not in fact required due to the size of the pool or that Mr Stocks had reassured her that this was the position from a very early time in her employment.

[26]The Tribunal's findings of fact at paragraphs 6.6 to 6.8 and their conclusion at paragraph 15, to which we have already referred, are said by Mr English to have been based on some answers by Mr Stocks to questions that he was asked in cross-examination and there is an agreed note before us of this evidence, which we have considered carefully. Mr English for the Respondent contends that there was clear and credible evidence from Mr Stocks on three separate occasions in this cross-examination that he gave the assurance to the Claimant which the Tribunal refer to at paragraphs 6.6 and 6.7.

[27]On analysis, however, we do not agree with this submission. The relevant extracts are these. Firstly, on page 4, Mr Stocks is noted to have said at one point:

"There were no health and safety concerns ever except when she first said she was not qualified as a lifeguard. I said that was fine, she didn't need to be qualified. You don't need to be, not in hotels, it depends on the size of the pool."

[28]There is reference in paragraph 6.6 to enquiries that Mr Stocks had apparently made as to the requirement for lifeguards and his discovery that due to the small size of the Respondents' pool lifeguards were not in fact required at the pool parties. However, this is not indicated in this agreed note of his answer in cross-examination on page 4. In any event it seems to be entirely inconsistent with his evidence in-chief as contained in his witness statement and the note does not indicate that he was asserting in evidence that he had known this fact at the time or that he had reassured the Claimant of the fact that lifeguards were not required because of the size of the pool. Later on in his cross-examination he conceded that at the time he wrote the staff manual, his understanding was that lifeguards were needed and that this manual was disseminated to all employees including the Claimant.

[29]There was then this passage on page 7:

"Q And therefore she made you aware that lifeguards were needed which she did. PS Jennifer Bushby never ever brought that to my attention, once three or four months after we opened she did. I informed her that she didn't need to be qualified. She cannot be there as a lifeguard because she wasn't qualified."

[30]Once again the agreed note of evidence does not indicate in our view that he was saying that he was reassuring the Claimant that due to the size of his pool no lifeguards were necessary at all and therefore that she did not need to be qualified.

[31]Finally, there is the extract from page 11:

"Q And Miss Bushby brought it to your attention that she didn't want to do th e pool parties for health and safety reasons. PS No. I advised her it was it was fine as it wasn't in the Holiday Inn. As it was becoming more popular, she began to make excuses not to attend, but she never raised a health and safety concern."

[32]Our views about this extract of his evidence in cross-examination are the same as we have expressed in relation to the earlier two extracts. It seems to us therefore that there was no evidence in this agreed note of Mr Stocks' cross-examination or in the other evidence adduced which could substantiate the Tribunal's finding at paragraphs 6.6 and 6.7 that Mr Stocks, having made enquiries as to the size of the pool, had discovered that lifeguards were not required to be present and that he had assured the Claimant that the size of the swimming pool was such that qualified lifeguards were not required to supervise the pool parties. In particular, there was no evidence to support the finding they make at paragraph 15 when coming to their conclusions that the Claimant had been reassured as long ago as April 2004 that qualified lifeguards were not required to attend at the swimming pool due to the size of that swimming pool.

[33]The confusion appears to arise from the fact that, as is common ground, the specific measurements which are referred to at paragraph 6.6 arose as a result of enquiries which Mr Stocks had made long after the Claimant's dismissal and indeed after the ET3 and the grounds of resistance had been lodged at the Tribunal.

[34]We therefore find ourselves in agreement with Mr Robinson-Young and reject Mr English's submission that there was clear evidence to support their findings of fact at paragraphs 6.6 and 6.7. In this connection we also note the Tribunal's finding at paragraph 6.10 that a number of documents had been produced by the Respondents for the purposes of the hearing, including for example, promotional materials and a health and safety risk assessment where reference was made to lifeguards, and that at the time of producing the assessment, Mr Stocks too, had thought there was a requirement to employ lifeguards at the pool.

[35]Further, at paragraph 6.9 the Tribunal recorded this finding:

"6.9 The claimant's pay slip (page 78) refers to her having been paid in respect of attendance at pool parties a rate of pay categorised as "lifeguard". "

They go on to explain that that was due to the fact that employees' pay for attending pool parties was the same as that for working as a lifeguard and it was convenient for the Respondent to use that description of "lifeguard" on the Claimant's payslip rather than to programme another description of work-type, for e.g., "attending at pool parties" in to the payroll system. We note however that there does not appear to be any evidence before us which would support that particular finding either.

[36]Mr English contends however, that even if there was insufficient evidence to substantiate their finding on this issue; it was not a finding which underpinned the Tribunal's ultimate conclusion as to the reason for this Claimant's dismissal. He submits that the reason for her dismissal was found by the Tribunal to be the fact that the Claimant had refused to work at the pool parties, as she had done in the past, which was a requirement of her contract of employment. Further, in refusing to work on 15 January she had not raised any health and safety concerns, saying that she was going out and that she would need to leave work on time. In support of those submissions, he relies heavily on the text messaging which took place between Mr Stocks and the Claimant on this day.

[37]We have considered this carefully but the argument in our judgment is unsustainable on a correct reading of the Tribunal's reasoning in paragraph 15. Here the Tribunal expressly reject the reason for dismissal which was being advanced by Mr Stocks, namely, the breakdown of trust and confidence between himself and the Claimant. However, in rejecting the reason for dismissal advanced by the Claimant, the Tribunal give as their explanation, the fact that it was difficult to accept that she could have genuinely continued to have maintained health and safety concerns having been assured as long ago as in April 2004 that qualified lifeguards were not required to attend at the swimming pool due to the size of the pool. It was on that basis that the Tribunal appear to have concluded that the principal reason for her dismissal was simply that she had refused to work at pool parties, which it had been explained to her at the outset of her employment, would be a requirement of that employment.

[38]In our judgment, and as paragraph 15 makes clear, the Tribunal's conclusions, unsupported, as we find, by the evidence, were inextricably linked to their rejection of the Claimant's contention as to the reason or principal reason for her dismissal. It is for these reasons that we find that this Tribunal erred. Viewed as at the time of the Claimant's dismissal, the Respondents' position was that lifeguards were required and supplied and that the Claimant herself was not required to work as a qualified lifeguard, which she was not, but merely to assist others who were. At the hearing we note that the Respondent conceded that no qualified lifeguards were, in fact, employed at the time. If the Tribunal had considered the matter on the correct basis it is in our view clear that they would not have arrived at the conclusion they did as to the reason for dismissal. Indeed, having expressly rejected the reason advanced by the Respondents their finding in paragraph 15 proceeded on what was a misunderstanding as to what the evidence had been and on findings of fact, which as we have explained were not supported by the evidence before them.

[39]For these reasons, therefore, this appeal must be allowed. The parties agree, in these circumstances that the matter must now be remitted to be reheard before a fresh Tribunal.