MR N EPSTEIN v THE ROYAL BOROUGH OF WINDSOR AND MAIDENHEAD [2007] UKEAT 0250_07_1511

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2007] UKEAT 0250_07_1511

Case No Appeal No. UKEAT/0250/07

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR N EPSTEINAPPELLANT

THE ROYAL BOROUGH OF WINDSOR AND MAIDENHEADRESPONDENT

Before

Mr Justice Burton Dr B V Fitzgerald

Date 15 November 2007

[1]APPEARANCES For the Appellant MR JONATHAN DAVIES (of Counsel) Instructed by: Thompsons Solicitors Congress House Great Russell Street London WC1B 3LD For the Respondent MR PETER OLDHAM (of Counsel) Instructed by: The Royal Borough of Windsor And Maidenhead Town Hall St. Ives Road Maidenhead Berkshire SL6 1RE SUMMARY Unfair dismissal – Reasonableness of dismissal Dismissal by Employment Tribunal of Appellant lifeguard's claim for unfair dismissal challenged, because the Tribunal is said to have erred in not considering/not accepting a case based on a disparity of treatment, the other lifeguard not having been disciplined. The Appellant saw a boy in trouble in the pool and failed to act, and was dismissed for gross misconduct: the other lifeguard did not see the boy, arguably in breach of his obligations, and was not disciplined. The Tribunal, in finding that the Respondent carried out sufficient investigations (including investigations into the role of the other lifeguard), was entitled to find that disparity did not arise in the light of the Respondent's conclusions, which were within the range of reasonable responses; consequently ( London Borough of Harrow v Cunningham ) the distinction between the two cases by the Respondent was not irrational. THE HONOURABLE MR JUSTICE BURTON This has been the hearing of an appeal by Mr Nicholas Epstein against the decision of the Employment Tribunal at Reading after a two day hearing in November 2006 in a judgment sent to the parties on 30 November 2006 dismissing his claim for unfair dismissal.

[2]Mr Epstein was a lifeguard at the swimming pool operated by the Respondent, the Royal Borough of Windsor and Maidenhead. He started work with the Respondent as a recreation assistant at the age of 16 and he was 20 at the time of the dismissal. From one point of view one must bear in mind therefore that he was only a young man with a heavy burden of responsibility, on the other hand he was someone who had held down the job, and had become naturally more experienced as he did so, for four years. He held the Royal Life Saving Society ("RLSS") National pool life guard qualification.

[3]His dismissal arose out of the near drowning of a young man in the pool, who had unfortunately suffered an epileptic fit, a Daniel Bell-Chambers, whom we will call BC in respect of whom the employer found that the Appellant had committed a gross error of judgment. It is extremely fortunate that BC was in fact rescued in time so as not to drown, and consequently that his life was saved. It would plainly not have made the Appellant's gross error of judgment, as was concluded by the employer and upheld by the Tribunal, any worse if BC had in fact drowned. Equally it would not have made it any better if BC had been rescued or saved or noticed by someone else before he was. The concentration has to have been on the conduct of this Appellant, and the nature of the finding against him by the employer and as upheld by the Tribunal was based upon the fact that the Appellant did in fact observe BC some 1 minute 40 seconds before he realised that he was in serious difficulty, at which time he had to be alerted to that fact by one of BC's friends, and consequently that he ought to have been alert to that danger before he was.

[4]The conclusion by the Tribunal at paragraph 52 is as follows:

"We have no doubt that the councillors and officers of the respondent who took and affirmed the decision to dismiss believed that Mr Epstein had made the miscalculation we refer to and we find that there were reasonable grounds for the respondent's belief. Mr Epstein made a judgment which he believed was right then and now. In contrast, the informed weight of opinion of the respondent, particularly that of Messrs Spencer and Franks and Ms Ambrose is that Mr Epstein's judgment was a miscalculation of a magnitude which led them to lose trust and confidence in his ability to do his job as lifeguard. That opinion was formed against the objective background of the standards of the RLSS and the NOP [National Operations Procedure Poolside] by those three officers, two of whom had extensive life guarding experience, one of whom was a health and safety officer and none of whom appear to have had a particular axe to grind."

While recognising, as the Tribunal does in paragraph 54, that the sanction of summary dismissal was a harsh one:

"... the plain fact is that the respondent's officers had lost trust and confidence in Mr Epstein's judgment and he could not then nor can he now agree with them. In those circumstances we cannot say the dismissal was outside the range of reasonable responses open to the Respondent."

The Tribunal further concluded that there were no procedural errors, that the dismissal was provided for in the express words of the disciplinary policy and that alternative sanctions were properly considered.

[5]There is no challenge on appeal to the reasonableness of that conclusion per se. There is a challenge, which forms the second and subsidiary ground of appeal before us, that the misconduct in question was not the real reason for the dismissal, but that there was a cover up on which the Respondent was engaged to prevent its being discovered that the other lifeguard who was on duty at the time, a Mr Reid, had not completed his poolside induction, and that that was a matter which the Respondent was so anxious should not see the light of day that they took the step of dismissal of the Appellant for that reason. That was an argument which was run on the Appellant's behalf at the Tribunal, and was rejected on the facts by the Tribunal in clear terms in paragraph 30. There was no conclusion at the end of the Tribunal hearing that the Tribunal could reach as to whether in fact it was the case that Mr Reid had not completed his induction, but what the Tribunal did conclude was that there was no basis whatever for the allegation of a cover-up. Indeed it points out in paragraph 30 that if the Respondent had feared the discovery of Mr Reid's allegedly inadequate training record it would have been more logical for them to support the Appellant and not dismiss him, rather than criticise him, because:

"... had they done so it seems likely that would have ended the matter with no investigation. Instead it was pressed forward with full rigour"

. We see no basis upon which that conclusion by the Tribunal can be challenged as perverse within the very limited parameters on which an Appeal Tribunal can look at such a conclusion or indeed at all.

[6]The only basis of appeal which has been argued in full by both Mr Davies of Council for the Appellant and Mr Oldham for the Respondent, both of whom appeared below and both of whom have appeared before us and addressed us very ably orally after providing very helpful written submissions, is what Mr Davies characterised as the issue of "disparity". Just as in the Court of Appeal Criminal Division disparity is never the most persuasive of arguments in terms of a sentence in the criminal courts, so to it is no open sesame to a finding of unreasonableness in the Employment Tribunals. The issue which is and must always be before the Employment Tribunal is the statutory test under s98, whereby first the employer must show what the reason for the dismissal was, and then under s98(4) the determination by the Tribunal follows as to whether the dismissal was fair or unfair (having regard to the reason shown by the employer) "which(a) depends on whether in the circumstances … the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and

(b) shall be determined in accordance with equity and the substantial merits of the case". The best and well established basis upon which the statutory test is applied in the employment tribunals is by reference to the leading case in the Court of Appeal of British Home Stores Ltd v Burchell

[1978] IRLR 379

, and over and over again the question that a tribunal is asked to ask itself, and in this case this Tribunal did ask itself, is whether the dismissal, the sanction imposed, was one which came within the reasonable band of responses for the employer. The Tribunal plainly concluded, albeit that it was a harsh sanction in this case, that it did, for the reasons that it gave, and which we have already canvassed. Where does disparity fit in to this concept? Plainly, as Mr Davies submitted, it can be considered under the rubric "in accordance with equity", but always within the Burchell test.

[7]Our attention has been drawn to the helpful words of Waterhouse J in the EAT in Hadjioannou v Coral Casinos Ltd

[1981] IRLR 352

at paragraphs 24 and 25 in which three possible ways, and only three possible ways, are put forward as to where decisions made by an employer in truly parallel circumstances in relation to a different employee may be relevant. Two of those are plainly not material in this case, the first being where employees may be led by an employer to believe that certain categories of conduct will be overlooked or will be more mercifully treated in the light of the way that other employees have been dealt with in the past; that does not apply here. Secondly, it may show that the dismissal in the instant case is not for the reason put forward i.e. that the asserted reason is not the real or genuine reason; that does not apply here, not least once we have rejected the 'cover-up' appeal. Waterhouse J's third example was this:

"Evidence as to decisions made by an employer in truly parallel circumstances may be sufficient to support an argument in a particular case that it was not reasonable on the part of the employer to visit the particular employee's conduct with the penalty of dismissal and that some lesser penalty would have been appropriate in the circumstances."

That was dealing with a case where there had been alleged differential treatment of an employee in relation to a similar offence on a different occasion. What is here addressed by Mr Davies is the comparison between what happened to the Appellant, who was dismissed as we have described, and to Mr Reid his fellow lifeguard, whose circumstances we will describe in a moment, who was not disciplined at all.

[8]Waterhouse J continued with a timely reminder:

"25. It is only in the limited circumstances that we have indicated that the argument [that is the disparity argument] is likely to be relevant and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar or sufficiently similar to afford an adequate basis for the argument. The danger of the argument is that a tribunal may be led away from a proper consideration of the issues raised by [the equivalent of s98 of the 1996 Act]. The emphasis in that section is upon the particular circumstances of the individual employee's case. It would be most regrettable if tribunals or employers were to be encouraged to adopt rules of thumb, or codes, for dealing with industrial relations problems and, in particular, issues when dismissal is being considered."

[9]In London Borough of Harrow v Cunningham

[1996] IRLR 256

Judge Clark, in rejecting the approach of the employment tribunal in that case was at paragraph 19 critical of its not having taken the following step, namely "… asked itself whether the distinction made between the two cases by [the employer] was irrational".

[10]We turn to describe briefly the circumstances in which the alleged disparity is said to have occurred. The Respondent's pool was a rather odd shape. The left hand side of the pool is called Wave 1 and has various irregular contours but is largely in a semi-circular shape. There is then to the right hand side a part of the pool called the River Run. It is incorrect to call the whole of the right hand side of the pool the River Run, because the actual River Run, properly so called, is a dog leg, which reaches out from the top right hand corner of the pool under a bridge and ends apparently in a dead end, and that dog leg is apparently fairly regularly filled with children. The rest of the River Run zone is a rectangle, which is immediately attached to the Wave 1 zone. There are regularly on duty two lifeguards. One is positioned in a stationary position on the south side of the pool where, by turning left, he or she can look at Wave 1, and by turning right look at the River Run. The boundary between the rectangular part of the River Run and Wave 1 is marked by two lines, one a rope on the surface on the water and the other a line in the tiles on the bottom of the pool. For some strange reason they are not in identical positions; the rope is somewhat to the left of the tile line, and there is an area between the lane rope and the tile line which could be said to be part of either Wave 1 or the River Run, and which is an area which effectively both lifeguards needed to keep a good look out, but we shall return to that. As it happens that is the area where the unfortunate BC in fact got into trouble on the day in question, 5 July 2005.

[11]The lifeguard on the day in this south side stationary position was the Appellant. His primary responsibility was to look after Wave 1 to his left, but he was expressly, under the procedures, also required to keep an eye on the area of the rectangular part of the River Run which lay between the rope and the line on the tiles, since that area was in a potential blind spot, because of the presence of a large column on the other side of the pool a viewed from the north side of the pool, where the second lifeguard was positioned. The second lifeguard on the day was Mr Reid. That lifeguard was not stationary, and consequently Mr Reid was required, in pursuance of his duties, to patrol the north side from right to left, and from left to right, keeping an eye on the whole of the River Run but in particular the dog leg part of the River Run, which was connected to the rectangular part of the River Run by a part of the dog leg which ran underneath a bridge. Mr Reid was to patrol from the left hand side of that bridge and then over the bridge and no doubt also to the right hand side of the bridge, in order that he could keep an eye on what was going on both in the rectangular part of the River Run and in particular the dog leg part of the River Run.

[12]Both lifeguards were required to carry out what was called the 10:20 system. This was an obligation to carry out 10 second sweeps by way of scanning their zones in order to be able to get to an incident within 20 seconds, the 10 seconds therefore for the scan and the 20 seconds for the ability to reach a problem. That of course was a procedure which the southern lifeguard, the Wave 1 lifeguard, was required to carry on while stationary and which the northern lifeguard in charge of the River Run was required to carry out while patrolling.

[13]BC on 5 July 2005 got into trouble in the pool in more or less the middle of the rectangular part of the River Run, and, as we have indicated, in that part of the River Run which was between the rope and the line on the tiles, and capable of being in a blind spot for the northern lifeguard. In the event, as we shall describe, Mr Reid the northern lifeguard did not notice BC at all. So far as the Appellant is concerned he did see BC. What occurred is described in the Tribunal judgment as follows in paragraph 17:

"At 1300 Mr Epstein had just started his turn in the Wave 1 Lifeguard's chair and Mr Reid was the River Run Lifeguard. ... Just after 1304 Mr Bell-Chambers swam across Mr Epstein's line of vision from left to right under the floating line to a position just beyond the floating line, towards the column but on the shallow end side of the tile line. In this position Mr Bell-Chambers first stood up (he was in easy standing depth) and then lay face down on the surface of the water for approximately one minute and forty seconds before slipping feet first under the water for about ten seconds. During this period Mr Epstein was scanning using the 10:20 method. In accordance with the NOP Mr Epstein's designated area included any blind spot behind the column. In the elapsed time Mr Epstein's line of vision would have crossed Mr Bell-Chamber's position during this period several times. Whether Mr Bell-Chambers was strictly speaking in Mr Epstein's intensive zone or not, Mr Epstein acknowledges that he did see Mr Bell-Chambers during this period and registered that he was floating face down. He saw movements of Mr Bell-Chambers hands and feet and assumed that he was playing a breath holding game, breathing between Mr Epstein's scans. In view of this Mr Epstein decided to take no action."

It is that failure to take action which was concluded by the employer and upheld by the Tribunal to amount to a gross miscalculation, of a magnitude which led the Respondents to lose trust and confidence in his ability to do his job. Luckily one of the friends of BC noticed what was going on and raised the alarm, and that caused the Appellant to enter the water and assist to recover BC. Fortunately, as we have indicated, he made a full recovery.

[14]The investigation by the Respondent did not simply concentrate on the conduct of the Appellant, it naturally also looked into the position so far as Mr Reid is concerned, and there was an interview by Mr Mist the Group Leisure Centre Manager with Mr Reid, and the relevant part of the note made on 4 August 2005 is as follows:

"KM [that is Mr Mist] asked what FR was doing during the moments prior to the incident. FR stated that he was in the River Run position lifeguarding that area of the pool… The pool wasn't busy but a number of adults and children had moved into the River Run [that means the dog leg part of the River Run] , so he moved to a position where he could best see these swimmers which was in the area marked B on the plan."

That is a spot marked by Mr Mist to the left of the bridge which crossed over the dog leg, and directly behind the column, so that there would have been no possibility of any view of BC from that position. The note of Mr Reid's interview continues:

"This meant that he could not see any of the bathers involved in the incident and was only aware of their plight when [the Appellant] shouted for his attention."

[15]The conclusion that was reached by the Respondent at the time was that Mr Reid had not seen BC in trouble at all, and that conclusion has never been challenged either in the disciplinary hearing or on appeal or at the Tribunal by the Appellant. What the Appellant and his representative at the Tribunal, Mr Davies, has asserted, is that that was or amounted itself to a serious disciplinary defence, because Mr Reid cannot have been carrying out the 10:20 process, which he was expected to carry out. So the position to be looked at in the round, now with the approach of Waterhouse J in Hadjioannou and Judge Clark in Cunningham , is that on the one hand this Appellant (using stronger language than is perhaps justified because fortunately BC did not drown) saw a drowning boy and took no steps to save him when he should have done, and when such decision not to assist was a gross error of judgment, while the other lifeguard Mr Reid, the Appellant submits, should be criticised for not having seen BC, in breach of his obligations to keep a proper watch out. There was no evidence, Mr Davies submits, of proper consideration of such disparity, which renders the decision of the Respondent and of the Tribunal perverse and wrong.

[16]So far as the Tribunal is concerned there is, as both counsel accept, no express dealing with the position on disparity by way of a paragraph which expressly says "we have considered Mr Davies' argument that the dismissal of the Appellant is rendered unfair by the disparate treatment of Mr Reid, and we do not accept it for the following reasons". What there is, is a reference to authorities recorded as having been cited before the Tribunal, which include two of those which have been before us, Paul v East Surrey District Health Authority

[1995] IRLR 305

and Securicor Ltd v Smith

[1989] IRLR 256

, relating to the issue of disparity. Mr Davies has told us, and Mr Oldham does not disagree, and we accept, that the Chairman indicated in the course of submissions that "this is not a case in which disparity is an issue", and it is plain that the Tribunal did not allow the question of disparity to affect their view that the employer was entitled to dismiss this Appellant for what he had done. Mr Davies submits that the Tribunal was perverse or erred in law in failing, if they did fail, to consider or, if they did consider, to apply the question of disparity so as to come to a different decision in relation to the Appellant.

[17]A simple answer which Mr Oldham would put forward would be that, whatever the position may have been in relation to Mr Reid, the Tribunal concluded that the conduct of this Appellant was such that he could not be allowed to be continued to be employed as a lifeguard for the reasons set out in paragraph 52: but the criticism that Mr Davies makes was that there was no express dealing with the disparity argument. Mr Oldham submits that if necessary there could be a reference back to the Tribunal pursuant to the Burns/Barke procedure to see what they had in mind in not overtly reaching a conclusion in relation to a disparity, if they did not.

[18]We are however entirely satisfied that the Tribunal was entitled to reach the conclusion it did. The first and necessary step for Mr Davies to succeed on, if he is going to establish his appeal, is that the employer acted perversely in its approach to the two employees, in particular by reference to Judge Clark's words as to whether the distinction between them was irrational. Mr Oldham submits, and we agree, that in order for that to be the case there would have to have been a perverse conclusion by the employer as the basis for distinction between the two. The perverse distinction which Mr Davies asserts is based upon the submission that the Respondent ought to have concluded that Mr Reid was in a position to see what occurred and negligently failed to do so. We address that point immediately.

[19]We have already read the 4 August note, in which Mr Reid set out his case to the employers at the time. Mr Mist, the investigating officer to whom we have referred, reached a conclusion which he set out in paragraph 9 of his witness statement as follows:

"From the CCTV footage viewed on the day of the event it was clear that Mr Epstein was the nearest lifeguard to Mr Bell-Chambers and the one with the clearest view of the pool. In my opinion Mr Bell-Chambers was in the zone of the pool allocated to the lifeguard in Mr Epstein's position."

We pause to say that that does not appear to be right, but on any basis it was the zone of the pool allocated to both lifeguards, in that it certainly came in the area between the line on the tiles and the floating line on the top of the water, even though it may have been out of Mr Reid's line of sight due to the column. "The second lifeguard Mr Fraser Reid was on the far side of the pool and obstructed from viewing that area of the pool by a column in the centre of the pool which effectively creates a blind spot for the lifeguard. This blind spot is referred to in a normal operating procedure for lifeguarding and the pool."

[20]Mr Scott the dismissing officer puts his position slightly differently in his witness statement at paragraph 8:

"The Panel considered the investigation process undertaken by Kevin Mist in relation to the two lifeguards on duty on the pool, Mr Epstein and Mr Reid, at the time of the incident and was satisfied that the differences and the statements provided at a very early stage and which related to Mr Bell-Chambers being seen by Mr Epstein and not being seen by Mr Reid,or for it to be possible for him to see Mr Bell-Chambers, had led to the outcome of the investigation being different for the two employees involved."

[21]There was cross-examination of Mr Mist and Mr Scott at the Tribunal, by which time the CCTV footage available from 5 July, which had been viewed by the employer, had also been viewed by those representing the Appellant and the Respondent at the Tribunal, and of course by the Tribunal itself, and it should have become apparent that it was not accurate to say that Mr Reid was in the position marked B on the plan to which we have earlier referred, but that he was at the material time on the bridge. We have seen a photograph of the view from the bridge and it is clear that on a good part of the bridge it is possible to have a view of that part of the River Run square zone where BC was in trouble at the material time, although it is not possible to say that there is such unobscured view from the whole of the bridge; indeed it would appear possible that from one side of the bridge there is almost as much, if not as much, of a blind spot as there would have been from the incorrectly positioned marked B. But that was a matter for the Employment Tribunal to consider.

[22]In the course of cross-examination Mr Mist accepted that Mr Reid was moving around and was not in the position B where he had placed him on the plan. He said that it was Mr Reid's job to move around, and that he was not supposed to stand still, and that Mr Reid had said that he was watching the small children in the dog leg. He accepted that the 10:20 policy applied to Mr Reid, but asserted that if he was not doing 10:20 because he was watching the small children he would have been doing what he thought right, and implicitly he would not criticise Mr Reid.

[23]In his cross-examination of Mr Scott, Mr Davies obtained the same admission that Mr Reid was not at the position marked B, and that the plan was not as accurate as it might be, but Mr Scott indicated that all this had been considered at the hearing, and according to a further note agreed by the parties Mr Mist is recorded as stating in cross-examination that the dog leg was "very difficult" if you were monitoring that area; and that operating 10:20 was "more difficult" as Mr Reid was "focusing on a number of small children". Mr Davies points out that the concentration on small children in the dog leg was not, according to the witness statements of Mr Mist and Mr Scott at least in terms what they had in mind when they concluded that Mr Reid was not to blame for not having noticed BC in trouble.

[24]We turn then to the issue as whether the Tribunal were perverse in not having concluded that the employers were unreasonable in concluding that BC was not to blame. This is at the end of the day an issue of fact, and perversity is extremely difficult for an Appellant to succeed on before us on appeal. We are satisfied that the Employment Tribunal considered this matter and considered it properly and fully.

[25]At paragraph 38 the Tribunal notes the finding of the disciplinary hearing that:

"The panel was satisfied that Mr Reid could not have been reasonably expected to see what was going on."

In paragraph 42.2 of its judgment the Tribunal records the conclusion of the appeal hearing, which of course looked afresh at the matters which had been investigated and had been the subject of the disciplinary hearing, and concluded:

"Mr Reid's alleged failures had been adequately investigated."

It was in these circumstances that the Tribunal concluded in paragraph 53 of the judgment:

"The investigation was entirely reasonable in the circumstances."

It appears clear to us that the reason why the Chairman said that disparity was not an issue is that the Tribunal was satisfied that the employers had carried out an adequate investigation, and had reached a conclusion, which was not capable of being characterised as unreasonable, that Mr Reid had not been in a position to see BC, whether he was in the precise spot marked on the plan by Mr Mist or otherwise. They certainly did not reach, and were entitled not to reach, the conclusion, having themselves seen the photographs and the CCTV, that it was unreasonable of the employer to reach the conclusion that Mr Reid was not in a position to have seen BC at the time that he was acting as northern lifeguard. As Mr Oldham has submitted, that destroys the ground of appeal, but we would also have agreed with Mr Oldham's fallback argument that in any event there is sufficient in the Tribunal's judgment from which one is able to understand that the Tribunal was concluding that, even if there was some failure by way of omission committed by Mr Reid, that did not excuse the offence of commission by the Appellant, and did not render unfair the imposition of the sanction by the Respondent in the light of that conclusion.

[26]In those circumstances we are satisfied that there was full consideration by the Tribunal, and that the Tribunal was entitled to reach the conclusion it did that the employers had acted in dismissing this Appellant within the reasonable band of responses of an employer, and accordingly this appeal is dismissed.