Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2014] CSIH 97

XA18/14

Lord Eassie

Lady Smith

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY SMITH

in

APPEAL TO THE COURT OF SESSION

UNDER SECTION 37 OF THE EMPLOYMENT TRIBUNALS ACT 1996

by

STEPHEN LAING

Appellant and Claimant;

against

SCOTTISH PRISON SERVICE

Respondent:

Appellant and Claimant:  Hardman; Balfour + Manson LLP (for R S Vaughan & Co, Glasgow)

Respondent:  Cameron;  CMS Cameron McKenna

20 November 2014

The Appeal
[1]        Did the Scottish Prison Service (“SPS”) unfairly dismiss Mr Stephen Laing, a prison officer working at HMYOI Polmont, on 21 February 2011?  The reason for his dismissal was his conduct in failing to intervene during an incident that occurred between another prison officer – Mr Doherty - and an inmate, and failing thereafter to report the matter.  The incident took place in an interview room and occurred on 7 June 2010, in Monro Hall.  The inmate was injured and he complained that he had been assaulted by Mr Doherty during the incident.  The Governor in charge of Polmont concluded that an assault had taken place; the Employment Tribunal (“ET”) was satisfied that he was entitled to do so.

[2]        SPS investigated and, having identified that Mr Laing was outside the interview room during the incident and, at one point, entered it briefly before returning to his position outside the door, commenced disciplinary procedures.  Following a disciplinary hearing which was conducted by a Mr Inglis, Mr Laing was found to be guilty of an act of gross misconduct and dismissed.  Mr Laing appealed to the SPS’ Internal Dismissal Appeal Board (“IDAB”) but his appeal was unsuccessful. 

[3]        Mr Laing claimed that he had been unfairly dismissed and an ET sitting at Glasgow upheld his claim.  The dismissal was, they said, unfair because another prison officer who was present in the hall, at a central desk, who also failed to intervene and failed to report the incident – Mr Findlay – was not dismissed.  The ET said that the circumstances were, in each case, truly parallel and therefore it was irrational to dismiss Mr Laing.  The Employment Appeal Tribunal (“EAT”), to whom SPS appealed, disagreed; on the findings of the IDAB which dealt with Mr Findlay’s case, Mr Findlay could not see as much of the incident as Mr Laing, the particular circumstances of Mr Findlay were relevant and they had reached their decision only after discussion and thought.  The ET had substituted their own view rather than ask whether the view arrived at by the IDAB was one which they were entitled to hold.  In doing so, they erred in law.

[4]        Mr Laing now appeals to this court.  His contention is, essentially, that the ET, was the sole arbiter of fact (Salamis (Marine & Industrial) Ltd v Forbes 2006 SC 62; McBride v Strathclyde Police Joint Board [2013] CSIH 4) and had concluded that  Mr Findlay had a clear view into the interview room, through the glazed panel in the top half of its door, from his position in the hall, and must have seen the assault.  The ET had done so on the plain evidence from the relevant CCTV camera, which they had viewed.  It was on that basis that they concluded that the circumstances of the two men were truly parallel and that to draw a distinction between them when it came to sanction was, therefore, irrational.  That was a conclusion which, on their findings, the ET was entitled to reach.  They made no error of law and the EAT was not, therefore, entitled to interfere. 

[5]        The response of SPS is to remind this court that it is only where an employer acted irrationally in drawing a distinction between employees in truly parallel circumstances that it is open to the ET to find that one of them was unfairly dismissed, that irrationality is a high test and that, far from making an irrational decision SPS, in the circumstances, were shown to have had rational grounds for the decision to dismiss.  The ET had been led away from the well known test of reasonableness, it had substituted its decision for that of the reasonable employer and failed to focus on the facts of Mr Laing’s case. 

Chronology of events
[6]        The order of relevant events is of some significance.  After the investigation into the incident, a number of employees were disciplined including Mr Laing and Mr Findlay.  The disciplinary procedures in relation to each of them were separate and independent of each other.  The key dates for Mr Findlay were:

• 7 February 2011 – the decision of Mr Inglis, following his disciplinary hearing, to dismiss him;
• 19 April 2011 – the decision of an IDAB, following an appeal hearing on 8 April 2011 that the decision to dismiss should be replaced by a final written warning (on grounds of gross misconduct).

The key dates for Mr Laing were:

• 21 February 2011 – the decision of Mr Inglis, following his disciplinary hearing, to dismiss him;
• 14 March 2011 – the deadline for Mr Laing to lodge his grounds of appeal;
• 3 June 2011 – the decision of an IDAB, following an appeal hearing on 20 May 2011, to uphold the decision to dismiss. 

The IDAB’s
[7]        In their letter to Mr Findlay (dated 19 April 2011), advising him of the outcome of his appeal, his IDAB explained:

“The key points the IDAB focussed on in terms of why Mr Findlay should not be dismissed was very much on the basis of mitigation and reconsideration of the balance of probability assessment made by Mr Inglis.

• The IDAB recognised Mr Findlay had been allocated to work in a location he rarely worked in and with staff he had never worked with, working with prisoners he had never worked with and knew nothing of the working regime.Whilst this will never mitigate against not taking appropriate action the IDAB had some sympathy with the fact that he had no hand over and no orientation and no idea of the style of prisoner management adopted by the other three Officers who regularly worked together;

   

• The IDAB noted when the incident began to develop and Mr Dalgarno was put in the interview room Mr Findlay was not on the flat and could conceivably not (sic) known who, if anyone, was in the interview room.

   

• The IDAB consider he should have sought further information when he was told there was a security issue and is due criticism and and (sic) must take responsibility for that failing.

   

• The IDAB accepted the possibility Mr Findlay could have been unaware of anything untoward going on until he saw Mr Doherty enter the interview room and heard him shouting and swearing.The IDAB thought long and hard about this aspect and the extent to which Mr Doherty’s behaviour would trigger a more appropriate response than Mr Findlay chose to take.

   

  Even though the IDAB accepted the possibility Mr Findlay could conceivably have not seen the assault he still failed in his duty.  The IDAB however saw his failure as being of a lesser magnitude than if he had seen the assault.

   

  Mr Findlay still clearly failed in his duty and this is in and of itself very serious, however the IDAB felt that dismissal, because of the mitigations was just too harsh an outcome.

   

• The IDAB also looked at the CCTV and thought it was possible given the sightlines Mr Findlay could only see part of the interview room and of that part could from his viewpoint conceivably only see the upper part of the room.

   

• Whilst Mr Findlay admits to hearing shouting and swearing , the IDAB felt there was not conclusive evidence he saw the prisoner being assaulted.For the IDAB the balance of probability in favour of suggesting Mr Findlay was aware of an assault was not sufficiently well enough evidenced to justify that decision.”

[8]        Mr Laing’s IDAB involved the same chairman as Mr Findlay’s but different panel members.  The sequence of events, as above, meant that it was not known, at the time that Mr Laing’s grounds of appeal were prepared and lodged, that Mr Findlay’s appeal had been successful.  Accordingly, his written case makes no mention of the decision in Mr Findlay’s case nor does it suggest that his circumstances were comparable.  However, Mr Findlay appeared as a witness at Mr Laing’s IDAB hearing and, as explained to the ET by one of the panel members of that IDAB (Sue Brooks):

“Findlay said he was not dismissed because he was new in the area – we obviously need to look at the whole circumstances – we did not draw his case record separately but looked at his conduct in the context of the main case.  The main distinction was that Findlay saw much less – certainly less that Laing – and that he did not work in this area – he did not know the others very well.  He did not report the incident but was the first member who sought advice from the trade union.  These were distinguishing factors.”  (ET Reasons para 88)

[9]        The chairman’s notes from Mr Laing’s IDAB hearing were attached to the letter intimating their decision and include:

“The IDAB do not agree Mr Laing only witnessed the tail end of the incident and consider the CCTV footage established he spent a relatively long period of time watching the incident and doing little.

The IDAB found the point made about Mr Laing considering that he did not feel an assault took place is in contradiction of Mr Laing’s response to Mr Inglis’ question ‘On that night, I am asking you did you think he was assaulted?’ to which Mr Laing answers ‘yes’.

It was fairly unequivocal to the IDAB that Mr Laing did think there had been an assault and so he must also have thought the circumstances were indeed consistent with assault.”

[10]      By contrast, Mr Findlay did not, however , at any stage, accept that he saw an assault taking place or that, at the time, he thought that the prisoner was being assaulted. 

The ET Decision
[11]      The ET heard evidence from Mr Inglis and Sue Brooks in the course of which they viewed the CCTV footage.  At various points in their written reasons, they state their conclusions about what that footage shows. 

[12]      At paragraph 158, the ET explain their reasons for concluding that the circumstances of Mr Laing and Mr Findlay were truly parallel. There, they state:

• Both men were experienced prison officers, the former with 17 years service and the latter with 20 years service;
• Both men were facing the same charge of having failed to deal appropriately with the same incident and failing to report it and the charge was found proven against both of them;
• Both men were subject to the same standards of behaviour and codes of conduct and had received similar training in restraint techniques;
• Mr Findlay had a view of Mr Doherty going through the interview room door, he heard the noise of upset furniture, he heard bawling and shouting, at one point went to the interview room door and he did nothing to intervene.It was not rational to consider that the distinction between the involvement of the two men meant that there were not “truly parallel circumstances which would favour dismissal of the claimant rather than Prison Officer Findlay.”
• Neither man was considered to have colluded with or been complicit with Mr Doherty and they were therefore unprepared for his assault on the prisoner.

[13]      The ET made reference to Post Office v Fennell [1981] IRLR 221, Hadjioannou v Coral Casinos Ltd [1981] IRLR 352 and Paul v East Surrey District Health Authority [1995] IRLR 305 as authority for the proposition that where two employees are guilty of misconduct in truly parallel circumstances and only one of them is dismissed, the employer must have had a clear and rational basis for distinguishing between them. 

Discussion and decision
[14]      There is only a limited appellate power to disturb the decision of an ET.  The statutory power to do so lies only where a question of law arises either from the ET’s decision or from the proceedings before it:  Employment Tribunals Act 1996 sec 21.  It was the ET’s decision which was attacked in SPS’s appeal to the EAT. 

[15]      The ET required to apply the law as set out in section 98(4) of the Employment Rights Act 1996.  That meant it had to ask itself whether Mr Laing’s dismissal was fair or unfair, having regard to SPS’s reasons for dismissing him and considering whether, in all the circumstances and having regard to equity and the substantial merits of the case, it was reasonable to dismiss.  The question was not whether or not SPS would have been justified in dismissing Mr Findlay; nor was it whether another employer would have dismissed Mr Laing; nor was it whether they, the ET, would have dismissed Mr Laing.  When carrying out the statutory exercise, it was also important for the ET to recognise that the fact of disparity of outcome as between parallel cases does not, of itself, mean that dismissal of one of the employees was unfair.  There is a risk that, if they do so, they will be led away from a proper consideration of the issues which are raised by section 98(4):  Hadjioannou v Coral Casinos (Waterhouse J at para 25).  Further, as was also observed in Hadjioannou, it is only in limited circumstances that the argument is likely to be relevant since there will not be many cases in which it is shown that the whole facts and circumstances relating to each employee are so similar as to provide a proper basis for the argument that disparate treatment was, testing matters by the objective standard of the reasonable employer, unfair.  Waterhouse J also cautioned ET’s to scrutinise arguments based upon disparity of treatment with particular care, a caution which was later endorsed by the Court of Appeal in Paul v East Surrey District Health Authority [1995] IRLR 305.  We agree with the Court of Appeal that that caution affords valuable guidance. 

[16]      As we have already observed, the task for the ET was not to decide whether or not SPS would have been justified in dismissing Mr Findlay or, indeed, whether they ought to have done so.  It is, however, evident from their reasons that they had those very issues very much in mind; they drew their own conclusions about what could be deduced from the CCTV evidence about Mr Findlay’s sightlines and his involvement, scrutinised the Findlay IDAB’s reasons and concluded, on their assessment of the evidence before them, that there was nothing to excuse his conduct.  In so doing, they disagreed with Mr Findlay’s IDAB; it had had regard to Mr Findlay’s position on the flat (having been allocated to work in a location he rarely worked in with staff he had not previously worked with and without handover or orientation having taken place) and, importantly to that IDAB, its members had not found it possible to conclude, on a balance of probabilities, that he had seen the assault.  Mr Findlay denied having done so and his IDAB having, as they explained, thought long and hard about all the evidence before them, did not find it possible to draw that conclusion.  The IDAB did not positively conclude that he did not see it.  That was not the question they had to answer and they were careful to make it clear that their decision was that they could not find that he did do so.  The balance of probabilities could not, as they saw it, be tipped in that direction.  Therefore, that aspect of the allegations made was not established; they could not, accordingly, discipline him on the basis that it was and they required to discipline him on the basis that they felt there were mitigatory factors which meant that dismissal was too harsh an outcome.  It is worth observing, at this stage, that Mr Findlay nonetheless had a weighty disciplinary offence and sanction recorded against him; the nature of his wrongdoing and the issuing of a final warning was no trivial matter. 

[17]      The ET went on to carry out a comparison exercise as between the circumstances of the two men, relying both on their own conclusions about the part played in the incident by each of them and also on the detailed text of the reasons given by Mr Findlay’s IDAB.  That document was not put before Mr Laing’s IDAB.  The ET placed no weight on his position as a newcomer to the flat and, significantly, approached matters on the basis that the IDAB which heard Mr Findlay’s appeal were irrational in considering that Mr Findlay did not see the assault (ET reasons, at para 164); they considered that, on the evidence, he must have seen it.  Counsel for Mr Laing relied heavily on that conclusion, seeking to support it on the basis that it was drawn from the ET’s consideration of the CCTV evidence; the implication was that because it was CCTV evidence, it was therefore fool proof and could not be gainsayed.  That submission is, however, immediately displaced by the fact that in this case two separate tribunals acting in good faith – the Findlay IDAB and the ET - reached different conclusions regarding whether or not they could be satisfied that Mr Findlay must have seen the assault.  Nor, we would add, did the ET make any allowance for not having heard all the evidence that was heard by the Findlay IDAB, (of which the CCTV evidence was but a part) or, indeed, for not having heard evidence from its chairman or any of its members.

[18]      In these circumstances, whilst the ET also warned itself against falling into a substitution mind-set (London Ambulance Service NHS Trust v Small 2009 IRLR 563) we agree with the EAT that they did just that;  their reasons give the impression that they were considering what they would themselves have done . That is something which it is easy to do; but when a tribunal does so, it errs in law.  The result was that they lost sight of the question of whether the employer acted fairly and reasonably in all the circumstances at the time of dismissal - whether the decision of Mr Laing’s IDAB was one which could have been taken, at that time, by a reasonable employer.  Their diversion from that essential task is further evidenced by their focus on what, in their view, should have been the outcome in Mr Findlay’s case where findings had been made by the IDAB which distinguished his circumstances from Mr Laing’s and enabled them, for the reasons given in their decision letter, to view what was still very serious misconduct as being of lesser magnitude.

Disposal
[19]      In these circumstances, the appeal is refused.