Dismissal for making ‘lewd’ comment was unfair
In Bowater v NW London Hospitals NHS Trust the Court of Appeal upheld a tribunal’s decision that a nurse was unfairly dismissed for making an inappropriate comment while straddling a patient to restrain him. The decision to dismiss was outside the band of reasonable responses given the circumstances.
A naked male patient’s fitting was causing him to be violent. Senior staff nurse Bowater volunteered to help restrain him. Ms Bowater climbed on the trolley to sit on the patient’s ankles but his violent movements resulted in her being kicked in the air, whereupon she landed astride his naked genitals and she said “It’s been a few months since I have been in this position with a man underneath me”.
She was dismissed for gross misconduct for making a lewd remark in the public area of A&E despite no member of the public, or the patient, being aware of the comment. A tribunal found the dismissal unfair. The comment was made in a stressful situation and while it was lewd, most people would consider it humorous in the circumstances. The EAT reversed the decision. It held that the test was not whether a large proportion of the population of the population would find the remark humorous. It was how a reasonable NHS Trust would have treated the comment and dismissal was a reasonable response.
The Court of Appeal upheld Ms Bowater’s appeal. The tribunal applied the band of reasonable responses test correctly. While Ms Bowater’s comment had been inappropriate it was not made in public, the patient was not aware of it and neither the doctor nor the charge nurse present had reported the behaviour at the time. The dismissal was wholly unreasonable.
Furthermore, an appeal to the EAT only lies on a point of law and it goes without saying that the EAT must not, under the guise of a charge of perversity, substitute its own judgment for that of the tribunal.
February 2011
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