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.
The Employment Appeal Tribunal thought otherwise. They overturned the Tribunal's decision and considered Ms Bowater's remark to have been an inappropriate one containing sexual innuendo concerning sexual relations with a patient. As such this was demeaning to the patient's dignity particularly as it was made in front of other health care professionals and members of the public or the patient's family could have heard it (although none did). The EAT found that the Tribunal had "wrongly substituted its opinion of what would have been reasonable". It also criticised the Tribunal's finding that Ms Bowater's remark would have been regarded by many as humorous on the basis that this was taking an irrelevant factor into account. Ms Bowater appealed to the Court of Appeal.
In one its most entertaining decisions for a while, the Court of Appeal blasted the Employment Appeal Tribunal and unanimously re-instated the Tribunal's decision that Ms Bowater had been unfairly dismissed. The Court of Appeal supported the Tribunal's decision making process saying that they correctly identified the relevant tests and carefully addressed the primary facts and were clearly aware of the context in which the events took place. It was also clearly relevant that Ms Bowater's remark was intended to be humorous and the Tribunal's comment that a large proportion of the population would have found it so did not demonstrate that the Tribunal had failed to apply the statutory test correctly.
The words of Longmore LJ are significant. He acknowledged the Tribunal's important role and said that "the employer cannot be the final arbiter of its own conduct in dismissing an employee". The final arbiter is the Employment Tribunal "to whom Parliament has entrusted the responsibility of making what are, no doubt, sometimes difficult and borderline decisions in relation to the fairness of dismissal.....the EAT must not, under the guise of a charge of perversity, substitute its own judgment for that of the ET".
Whilst this case does not change the law, it does demonstrate, in an entertaining way, a number of very important factors that employers should keep in mind. In cases of alleged gross misconduct an employer should keep the broader context in mind in determining whether or not the conduct is dismissable. The Court of Appeal has also affirmed that in the final analysis employers can not be trusted to be the final arbiters of their own conduct. This role belongs to the Employment Tribunal. When dismissing for any reason an employer should always remember that the Employment Tribunal is looking over its shoulder.
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Author Profile: David Malamatenios
Date published: 17th February 2011