February 18, 2011
The Court of Appeal has ruled that nurse, Laura Bowater, was unfairly dismissed by North West London Hospitals NHS Trust when she was sacked for making a lewd comment whilst trying to restrain a man undergoing an epileptic shock. When she found herself having to straddle the patient in order to restrain him, she commented: “It's been a few months since I have been in this position with a man underneath me.” The hospital considered her comments to constitute a breach of the Code of Professional Conduct of the Nursing and Midwifery Council which obliges nurses to promote and protect the interests and dignity of patients at all times and dismissed her without notice. However, the Judge held that her sacking for gross misconduct was disproportionate and unwarranted after her four years’ service with an unblemished conduct record and given the facts that she had volunteered to assist at the end of a twelve-hour shift in the emergency department, had not been trained in restraint processes, the remark was intended as humorous, the patient man was unconscious at the time and so would not have heard her and there were no other members of the public present. The case highlights the need for employers to act proportionately when considering how to punish employees for misconduct. Any action must fall within the band of reasonable responses open to a reasonable employer in the circumstances. If there is any doubt, legal advice should be sought before taking any action.