Articles
Tribunal Sees the Funny Side of Nurse's Lewd Comment
An entertaining but revealing case has recently been determined by the Court of Appeal in Bowater v North West London Hospital NHS Trust [2001] EWCI Civ 63.
Ms Bowater, a Senior Staff Nurse, went to the aide of colleagues who were struggling to restrain an epileptic patient. The nursing team removed the patient's trousers to enable him to be given a pacifying injection. In order to further restrain the patient, Ms Bowater climbed on to the patient and sat on his legs. The patient then kicked out, lifting Ms Bowater up, and she landed astride his exposed genitals. At this point, Ms Bowater said "it has been a few months since I have been in this position".
The hospital dismissed Ms Bowater for using an inappropriate method of restraint and for making an unprofessional remark. The matter came before an Employment Tribunal.
Section 98 of the Employment Rights Act states that the dismissal of an employee will be unfair, unless the employer can show that the dismissal was for a potentially fair reason (such as conduct) and the Tribunal are satisfied that the employer has acted reasonably in treating that reason as a sufficient reason for dismissal. A Tribunal must therefore assess objectively whether dismissal fell within the range of reasonable responses. In applying this test, whether or not the Tribunal would have dismissed the employee if it had been in the employer's shoes is irrelevant and Tribunals are forbidden from substituting their own views for that of the employer. They must only be satisfied that the employer has acted reasonably.
Applying this test, the Employment Tribunal found that Ms Bowater was unfairly dismissed and that the hospital had not acted within the range of reasonable responses. In the Tribunal's view part of the responsibility for failing to restrain the patient lay with the employer for not having a restraint policy. Also, the Tribunal were satisfied that taking the context into account a "large proportion of the population" would consider the remark to be merely humorous. Furthermore, a member of the public was not present to overhear the remark and Ms Bowater had a clean disciplinary record. This is merely common sense and it would seem inappropriate to dismiss a nurse in these circumstances.
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Author Profile: David Malamatenios
Date published: 17th February 2011