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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> North West London Hospitals NHS Trust v. Bowater [2009] UKEAT 0144_09_1412 (14 December 2009) URL: https://www.bailii.org/uk/cases/UKEAT/2009/0144_09_1412.html Cite as: [2009] UKEAT 144_9_1412, [2009] UKEAT 0144_09_1412 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE McMULLEN QC
MS K BILGAN
MRS M MCARTHUR FCIPD
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR BEN COOPER (of Counsel) Instructed by: Messrs Cater Leydon Millard Solicitors 18c Milton Park Abingdon OX14 4RP |
For the Respondent | MR DESHPAL PANESAR (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW |
SUMMARY
UNFAIR DISMISSAL: Reasonableness of dismissal
While assisting in the restraint of a patient admitted to A&E, the female Claimant senior nurse sat astride his naked genitals and made a lewd comment for which she was dismissed. The majority Employment Tribunal Judgment of unfair dismissal and 25% contribution was set aside as perverse and the minority Judgment was substituted. The majority failed to apply the approach in London Ambulance Service NHS Trust v Small [2009] IRLR 563 CA for it did not focus on the material available to the management, and their opinion of this conduct, at the time of dismissal, and irrelevantly invoked its perception of how the general population would view the conduct. Minority Judgment upheld.
HIS HONOUR JUDGE McMULLEN QC
Introduction
The legislation
"(4) … the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case."
Contribution is dealt with in section 123(1) and (6). The Tribunal does not cite this, but it is common ground that a deduction on a percentage basis would be made if there were blameworthy conduct. The Tribunal does not cite section 98A which deals expressly with procedural fairness. Where there has been a procedural defect, a dismissal which would otherwise be unfair is fair if on a balance of probabilities the Respondent would have dismissed the Claimant fairly in any event.
The facts
"4.8 It was clear to the Claimant and a colleague of hers, who was also leaving work, that the nursing team had lost control of restraining patient D. He was extremely strong, his fitting was causing him to be violent towards the nursing team and Dr Tong was desperately trying to give patient D an injection of diazepam to calm him down before he injured himself or inflicted injury on the nursing team. To do this, Dr Tong required the nursing team to remove patient D's trousers and underwear so that he could gain access to administer a shot of diazepam into patient D's buttocks. The trousers of patient D were therefore removed leaving his bottom half naked. Although a hospital gown was placed over him, this was soon brushed off by the erratic movements of patient D.
4.9 Diazepam was then injected into patient D but it had no effect. Dr Tong then suggested that by attempting to restrain the patient, they may be exacerbating his hostile behaviour. In those circumstances, the advice he gave to the nursing team was to release whichever limb or part of patient D's body each member of the team was holding. However, once this happened, patient D attempted to climb off the trolley and, in particular, turned himself over from lying in a prone position to lying in a supine position, thereby exposing his private parts to full view by the team.
4.10 The Claimant and her colleague had come to assist with the restraint of patient D. Restraining the patient was particularly hampered by reason of the size of the trolley with its sides in position, thereby preventing the restraint team from getting a good grip on a particular limb of patient D. (In retrospect it would have been much easier to have restrained patient D if had been held down on the floor.)
4.11 By this time, Dr Tong was desperately trying to administer a further injection, this time 4mg of lorazepam, and was leaning over the patient's torso but was unable to administer the injection because of the patient thrashing around. Patient D was kicking his legs and flailing his arms.
4.12 It was at this point that the vital incident relevant to this case took place. The Claimant was at the bottom of the trolley, attempting unsuccessfully to hold down patient D's ankles. So she climbed on to the end of the trolley and sat herself astride his ankles. This was at a time when the patient D was in the prone position. When patient D turned himself over into the supine position, he managed to kick the Claimant between her legs and lifted her up so that she then landed astride patient D's naked genitals. That action of the Claimant allowed sufficient time when patient D was being restrained for Dr Tong to administer the further injection which eventually caused patient D's hostile behaviour to subside. At no time during the incident was patient D capable of understanding what was going on or what had been said."
"4.17.1 That she had used an unacceptable and unprofessional method of restraint on the patient D and
4.17.2 that whilst straddling patient D, who was naked, she had made a remark to the effect: 'it has been a few months since I've been in this position with a man underneath me'."
"The findings of the panel are that your behaviour was:
- An act of gross misconduct in that you breached the Nursing and Midwifery Council code of professional conduct: standards of conduct, performance and ethics. As a result of these findings the panel drew the following conclusions:
Allegation 1
- That you failed in your duty of care to your patients and clients who are entitled to receive safe and competent care (NMC para 1.4).
- That you failed in your duty, in that you are personally accountable for ensuring that you promote the interests and dignity of patients and clients (NMC para 2.2).
Based on the evidence, the allegation is upheld and constitutes gross misconduct.
Allegation 2
- That you failed to behave in a way that upholds the reputation of the profession (NMC para 7.1).
Based on the evidence, the allegation is upheld and constitutes gross misconduct.
As a result of these conclusions, the decision of the panel is to summarily dismiss you. This decision has not been taken lightly and in considering the management case we considered that the [method of] restraint used by you was inappropriate and unacceptable in any situation but particularly with respect to this very vulnerable patient. The type of restraint used also placed the patient, you and your colleagues at risk. In addition, you made an unprofessional remark during this incident which was inappropriate and unprofessional ..."
"In arriving at this decision, the panel took into account the following:
- That you had a clear record before this matter
- That you recognised that you had made a serious mistake
- The panel acknowledges that restraint was needed to administer medicine, but that this was conducted in an inappropriate manner
- The Trust are in the process of creating a restraint policy which will be ratified at the next Patient Safety Committee
- Staff should have reported this clinical incident earlier and the panel have followed this up. I can confirm that appropriate action was taken with the responsible staff."
"7.2 … The employer must establish a reasonable suspicion amounting to a belief in the guilt of the employee in respect of the alleged misconduct at that time.
7.3 On a neutral burden of proof the Tribunal has to be satisfied that the Respondent had in its mind reasonable grounds on which to sustain its belief in the misconduct of the Claimant and that at the time the employer formed its belief it had carried out as much investigation into the matter as was reasonable in all the circumstances of the case."
"'What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. This is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.'"
"7.5. The correct approach for a Tribunal when applying s. 98(4) ERA, is to consider whether the Respondent's decision to dismiss the Claimant fell with the band of reasonable responses to the Claimant's conduct which a reasonable employer could adopt. Moreover, it is not for the Tribunal to substitute its own view for that of the Respondent. [Foley v Post Office and HSBC Bank (formerly Midland Bank) [2000] IRLR 827]."
"8.2 The majority considered that the Claimant's dismissal was substantively unfair because the Tribunal is satisfied that Mrs Robb, by her decision to deprive Ms Mackie of any information relating to the disciplinary charge against Charge Nurse Lee, deprived her of carrying out as much investigation into the matter as was reasonable in all the circumstances and, in particular, deprived her of seeing clearly the initial view of Charge Nurse Lee in relation to the incident on the trolley. The majority also consider that Ms Mackie did not take sufficient steps to locate Dr Tong. As it was clear that he appeared to be working for the NHS, the Tribunal considers he could easily have been located had Ms Mackie or the HR Department of the Respondent, made an effort to find him.
8.3 Further, the majority consider that the decision to dismiss the Claimant fell outside the band of reasonable responses which a reasonable employer could adopt. Firstly, in respect of restraint, the Tribunal considers that the primary responsibility for the failure to restrain patient D lay partially with the Respondent in failing to have in place a proper restraint policy, partially with Dr Tong in requiring the nursing team to restrain patient D on a trolley rather than on the floor and finally with Mr Lee, the charge nurse in charge of the nursing team in failing to point out to Dr Tong that he was unable to restrain the patient and in failing to make any criticism whatsoever to the Claimant when she first got on to the trolley to assist. So far as the comment is concerned, the majority are of the view that to consider such a comment made in the circumstances in which it was made, is sufficient in itself to deprive a nurse of her career in nursing, cannot possibly be within the band of reasonable responses. In the majority view, no reasonable employer would have failed to take into account the mitigating circumstances, namely that
(i) the Claimant had not been trained in restraint processes by the Respondent (that is, the Respondent was to blame for this aspect of the matter).
(ii) she had volunteered to help, having finished a 12 hour shift, when she would have been perfectly entitled to walk out the door, the possible consequences of which may not bear thinking about.
(iii) the comment was made at the end of a very stressful experience, working on the front line of a crisis situation.
(iv) the comment was directed at the Claimant, not specifically at the individual patient.
(v) at worst the comment can be described as lewd but a large proportion of the population would consider it to be merely humorous.
(vi) although it was made in an area to which the public could be admitted, no member of the public was, in fact, present.
(vii) the Claimant had a clean disciplinary record.
8.4 In summary, the conclusion of the Tribunal is that the investigation, bearing in mind the potential effect on the Claimant's future nursing career, was not reasonable in the circumstances."
"12 Although the decision to dismiss the Claimant could be considered to be harsh, it could not be considered to be outside the range of reasonable responses available to a reasonable employer in the circumstances. It was, so far as the minority was concerned, just within the range of reasonable responses. In those circumstances the dismissal was substantively fair. The Claimant's comment was a lewd comment which is not acceptable in any circumstances where a nurse is working in an area to which the public have access."
The Respondent's case
The Claimant's case
Discussion and conclusions
The secondary grounds
"34. 1 consider that all industrial tribunals would be wise to heed the warning of Waterhouse J, giving the judgment of the Employment Appeal Tribunal in Hadjioannou v Coral Casinos Ltd [1981] IRLR 352 where, in paragraph 25, he said:
'We accept that analysis by counsel for the respondents of the potential relevance of arguments based on disparity. We should add, however, as counsel has urged upon us, that industrial tribunals would be wise to scrutinise arguments based upon disparity with particular care. It is only in the limited circumstances that we have indicated that the argument is likely to be relevant, and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar, or sufficiently similar, to afford an adequate basis for the argument. The danger of the argument is that a tribunal may be led away from a proper consideration of the issues raised by s.57(3) of the Act of 1978. The emphasis in that section is upon the particular circumstances of the individual employee's case. It would be most regrettable if tribunals or employers were to be encouraged to adopt rules of thumb, or codes, for dealing with industrial relations problems and, in particular, issues arising when dismissal is being considered. It is of the highest importance that flexibility should be retained, and we hope that nothing that we say in the course of our judgment will encourage employers or tribunals to think that a tariff approach to industrial misconduct is appropriate. One has only to consider for a moment the dangers of the tariff approach in other spheres of the law to realise how inappropriate it would be to import it into this particular legislation.'
35. I would endorse the guidance that ultimately the question for the employer is whether in the particular case dismissal is a reasonable response to the misconduct proved. If the employer has an established policy applied for similar misconduct, it would not be fair to change the policy without warning. If the employer has no established policy but has on other occasions dealt differently with misconduct properly regarded as similar, fairness demands that he should consider whether in all the circumstances, including the degree of misconduct proved, more serious disciplinary action is justified."
Agreeing, Sir Christopher Slade said:
"39. … in the light of the appeal panel's decision the industrial tribunal was not entitled to investigate the allegedly comparable cases for itself and to make its own findings as to what had actually occurred in those cases and itself to decide whether a comparison between the employer's treatment of the case of Mr Paul and that of the other employees concerned established inequitable treatment for the purposes of s.57(3) of the 1978 Act."
Disposal