Friday, 21 October 2011 12:54

 

 UNFAIR DISMISSAL (SEPTEMBER 2011)

Unfair Dismissal

Embarrassing position for an unfair dismissal

 

  A nurse who found herself in an embarrassing situation made light of it by cracking a joke. She was later  dismissed for gross misconduct due to her “lewd comments”. The Court of Appeal has now ruled that    her sacking was unfair. Why?

Carry on Nurse

 

Back in 2006 Laura Bowater was employed as a senior nurse by North West London Hospitals NHS Trust in a busy accident and emergency department. One day she stepped in to help some colleagues who were struggling to restrain a patient. He was having an epileptic fit and needed an injection to control it. In order to do this, his trousers and underwear had been removed and he was lying in a face down position.

 

An unexpected position

 

To stop him injuring himself, Ms Bowater sat on his ankles whilst the medication was being administered. However, the patient happened to be quite strong and managed to flip onto his back knocking her forward. She ended up being sat astride the naked man.

Saucy: Wishing to make light of the situation, she joked to her colleagues “It’s been a few months since I’ve been in this position with a man underneath me”.

 

Objection

 

Six weeks later a formal complaint was made about her comment. The Trust accepted that none of Ms Bowater’s colleagues were offended by it; what’s more, it agreed that the patient couldn’t possibly have heard it. Nevertheless, she was dismissed for gross misconduct.

 

Coming and going. Initially, the tribunal ruled her dismissal to be unfair. The Trust managed to overturn this decision at the Employment Appeal Tribunal so Ms Bowater sought redress at the Court of Appeal.

 

  Court of Appeal ruling

 

It reinstated the tribunal’s original decision and said that although her words “could be described as lewd, a large proportion of the population would consider them to be merely humorous”. The Court also thought it significant that the other staff hadn’t reported her behaviour’ the complaint was eventually made by a nurse who wasn’t directly involved in the accident.

 

Proper response. But her delay in doing this suggested she didn’t really think anything of it. Therefore, whilst the comment was “undeniably rude”, a lesser disciplinary sanction in this situation was probably far more appropriate.

 

Partly her fault

 

However, Ms Bowater wasn’t entirely successful. Whilst the Court ruled her dismissal was unfair. It found her actions “contributed” to it by 25%.That means when her compensation is finally assessed back at the tribunal, her award will be reduced by this amount.

 

Where does that leave us?

 

This ruling is important, but not because it permits employees to make saucy comments if their colleagues won’t find them offensive – it doesn’t do that! What it highlights is the importance of making a “reasonable response” to an employee’s misconduct. A particular level of disciplinary sanction may be a step too far.

 

Tip. Don’t discipline or dismiss an employee because you think you ought to. A disciplinary sanction must be justified; if it’s not, an informal warning may be more appropriate.

 

The court said that the employer’s response to her comments was a “step too far”; based on the facts, a lesser disciplinary sanction should have been imposed. Don’t discipline, or dismiss, just because it seems like the right thing to do. In some situations an informal warning may be far more appropriate.

  

                                                                                                                                                  

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