The EAT in Eptstein v Royal Borough of Windsor and Maidenhead has confirmed that there are only limited circumstances in which the difference in treatment by an employer between employees involved in similar incidents will be relevant in determining whether a dismissal is unfair.


In this case, two lifeguards at a swimming pool were on duty when there was an incident in the pool involving a child at risk of drowning. Following a disciplinary procedure, one lifeguard was dismissed but the other lifeguard was not disciplined at all. The lifeguard who was not disciplined had not been able to observe the relevant incident and thus could not have been expected to take any action.

The dismissed lifeguard argued that the disparity of treatment made his dismissal unfair. The EAT held that the difference in treatment was not an issue in this case, and was satisfied the employer had reached a decision which was reasonable. Mr Epstein's argument would only have succeeded it would appear, if the two lifeguards had been in an identical situation. In this case Mr Epstein was able to see the child but the other lifeguard was not.

Impact on employers

This decision highlights that difference of treatment between employees is unlikely to be relevant in determining whether a dismissal is fair unless the circumstances of the dismissals of each of the employees are almost identical. 

However, employers should still take care to ensure that any decision to dismiss is reasonable taking into account all the circumstances.