Employment Law

Removing a person’s livelihood is extremely serious and need to only be considered when there actually is no alternative. This applies even where an incident may constitute gross misconduct. Employers ought to consider all mitigating circumstances very carefully. If in doubt, err on the side of caution.

Laura Bowater, a nurse employed by the Northwest London Hospitals NHS Trust, had finished her 12-hour shift. She volunteered to stay on to help to restrain a naked patient who was having an epileptic fit. There was some thing of a struggle, throughout which Ms Bowater sat astride the patient’s naked genitals, at which point she created a comment along the lines of “it’s been a whilst given that I’ve been in this position with a man underneath me”. No member of the public was present to hear the remark and there was no evidence that the patient was sufficiently alert to have heard the remark.

The hospital deemed that Ms Bowater had utilized unacceptable and unprofessional approach of restraint on the patient and produced a sexual remark about the patient. She was dismissed. When Ms Bowater complained that she had been unfairly dismissed, the court agreed and found that the Hospital’s response was outside the “range of reasonable responses” since:

she had not been trained in restraint procedures
she had volunteered to aid, having finished a 12-hour shift
the comment was made at the end of a extremely stressful expertise, working on the front line of a crisis scenario
the comment was directed at herself, not particularly at the individual patient
the comment could, at worst, be described as lewd, but “a big proportion of the population would consider it to be merely humorous”
even though it was made in an area to which the public could be admitted, no member of the public was, in reality, present and
she had a clean disciplinary record.

Employers must look at all the circumstances when deciding regardless of whether or not to dismiss. In this case it was unreasonable to dismiss a great employee for a single remark made in a stressful situation. Get and stay up-to-date with employment law in no time at all with our Law on the Move® (LOTM). This crucial tool kit combines audio and interactive webinar updates, a short summary of the key points and – most importantly – tells you what you have to do and when to do it.

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