Bowater v Northwest London Hospitals NHS Trust
When deciding whether a dismissal is fair or unfair, tribunals must not substitute their own view as to whether the employer’s decision was reasonable or not. In Bowater v Northwest London Hospitals NHS Trust, the Court of Appeal said that the tribunal had not substituted its view when deciding that it was not reasonable for the Trust to dismiss a nurse for making a lewd comment.
Ms Bowater’s union, Unison, instructed Thompsons to act on her behalf.
Basic facts
Ms Bowater, a senior staff nurse, was involved in an incident at work, where following the end of her 12 hour shift, she went to assist colleagues who were trying to administer medication to an epileptic patient.
While restraining this patient who was extremely violent, as he was in the throes of fitting, she ended up sitting astride him as he lay face up. While straddling his genitals, she allegedly said: "It's been a few months since I have been in this position with a man underneath me."
In the course of carrying out an investigation into the incident, a medical practitioner reported that Ms Bowater had also made a similar comment to her shortly afterwards.
Ms Bowater was subsequently disciplined and dismissed for two acts of gross misconduct - using an inappropriate form of restraint and making an unprofessional remark - although her remarks had not been overheard by a member of the public and she had never been disciplined before.
Tribunal and EAT decisions
The tribunal held that the decision to dismiss was unfair. Firstly the employer was partially responsible for Ms Bowater using an inappropriate restraint as it did not have a policy for restraining patients and had not trained her. And secondly the doctor and nurse in charge were at fault for trying to restrain the patient on a trolley.
As for the comment, it felt that it could not possibly be within the band of reasonable responses for an employer to deprive an employee of a career in nursing for making what could be described as a lewd comment, but one that “a large proportion of the population would consider .. to be merely humorous”.
The EAT, however, disagreed saying that the tribunal had substituted its opinion for that of the employer in terms of what would have been reasonable in the circumstances. Instead, it should have asked how this comment would be treated by a reasonable NHS Trust, and was the decision to dismiss outside the band of responses of a reasonable NHS Trust in those circumstances?
Court of Appeal decision
But the Court of Appeal has just overturned this decision, saying that the tribunal had applied the correct legal test when deciding that the decision to dismiss was outside the range of reasonable responses available to a reasonable employer in the circumstances.
It agreed that the remark was intended to be humorous and although Ms Bowater was at fault for making it, no member of the public heard it and there was no evidence the patient had been aware of it. Neither the doctor nor the nurse in charge had reported her conduct.
The Court concluded that: "It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET. It is the ET 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. 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 ET."