In Bowater v NW London Hospitals NHS Trust the Court of Appeal has held that an employment tribunal did not unlawfully substitute its own opinion for that of the employer by having regard to how ‘a large proportion of the population’ would view a lewd comment, on which a dismissal was based.
After finishing her shift the Claimant, a staff nurse, volunteered to help restrain a male patient who was naked and having a fit. She ended up straddling the patient’s genitals and saying ‘it’s been a few months since I have been in this position’. Six weeks later she was dismissed for gross misconduct, despite her unblemished disciplinary record and the fact that no member of the public, or the patient, was aware of the comment. A tribunal held that the Claimant was unfairly dismissed, finding that, at worst, the comment could have been considered to be merely humorous.
The Employment Appeal Tribunal (“EAT”) allowed the employer’s appeal, holding that the tribunal had taken into account an irrelevant factor with its ‘large proportion of the population’ test. Instead, it should have considered how a reasonable NHS Trust would have treated the comment. The Claimant appealed.
The Court of Appeal allowed the appeal, restoring the tribunal’s decision. It held that it was evident that the tribunal had applied the correct 'band of reasonable responses’ test. Head of our Employment Team, Kate Fretten, says "It was common ground that the remark was intended to be humorous, the tribunal was clearly aware of the context and made it clear why it disagreed with the employer as to the seriousness. The EAT had been over-critical. The Court noted that it is important in such cases that the EAT pays proper respect to the tribunal’s decision and that it should not, under the guise of perversity, substitute its own judgment for that of the tribunal."