Bowater v Northwest London Hospitals NHS Trust

In unfair dismissal proceedings, the Employment Tribunal must decide whether dismissal fell within the range of reasonable responses open to a reasonable employer. It must not substitute its own view, but the employer is not the final arbiter of the fairness of its decision. Context and mitigation, including whether misconduct was intended as humour, may be relevant. The employer’s professional judgment deserves respect but is not conclusive. An appeal to the Employment Appeal Tribunal lies only on a point of law, and it must not substitute its judgment under the guise of perversity. On the facts, summary dismissal for a lewd humorous remark made during an emergency restraint was outside the reasonable range.

A senior staff nurse stayed after a 12-hour shift to help colleagues restrain a patient who was violently fitting. During the incident, the patient’s clothing had been removed to permit medication to be administered. The nurse was accidentally lifted and landed astride the patient’s naked genitals, after which she made a remark intended to be humorous.

The hospital dismissed her for gross misconduct, relying on the Nursing and Midwifery Council code of professional conduct. The Employment Tribunal, by a majority, found the dismissal unfair and assessed her contribution at 25 per cent. The Employment Appeal Tribunal allowed the Trust’s appeal, holding that the remark could justify dismissal and that the Tribunal had substituted its own judgment. The central issues were the proper application of the range of reasonable responses test, the relevance of context and humour, the limits of EAT appellate review, and the contribution finding.

1. Appeal allowed. The Court of Appeal unanimously held that the Employment Appeal Tribunal’s judgment was clearly wrong. The Employment Tribunal’s finding of unfair dismissal and its assessment of 25 per cent contribution were restored.
2. The Employment Tribunal correctly asked whether dismissal was within the range of reasonable responses open to a reasonable employer in the circumstances. The question was not whether the Tribunal would itself have dismissed. However, the employer could not be the final arbiter of the fairness of its own decision. The Tribunal had to make its own judgment while respecting the opinions of experienced professional decision-makers.
3. The Employment Appeal Tribunal was wrong to treat the Employment Tribunal’s consideration that the remark was intended as humorous as irrelevant. That circumstance was plainly relevant, just as the remark’s being insulting to the patient would have been relevant. The EAT was also wrong to infer from that consideration that the Tribunal had substituted its own opinion; that conclusion did not follow.
4. The nurse’s conduct properly attracted disciplinary action, but summary dismissal was outside the reasonable range. Relevant circumstances included the emergency setting, the absence of members of the public, the lack of evidence that the patient understood the remark, the nurse’s clean record, the absence of contemporaneous criticism or reporting by colleagues, and the six-week delay before the matter became a disciplinary allegation. The Employment Tribunal had carefully addressed the primary facts and was entitled to disagree with the employer’s assessment of seriousness.
5. An appeal to the EAT lies only on a point of law. The EAT must pay proper respect to the Employment Tribunal’s decision and must not, under the guise of perversity, substitute its own judgment for that of the Tribunal.
6. No remission was required on contribution. The issues had been fully before the Employment Tribunal, the 25 per cent finding was not said to be insensible or unavailable on the evidence, and the basis for the assessment was apparent from the decision. The Employment Tribunal’s order was restored.

1. Court of Appeal (Civil Division): allowed the nurse’s appeal, held that the EAT had wrongly interfered with the ET’s assessment, and restored the ET’s order.
2. Employment Appeal Tribunal: allowed the Trust’s appeal, holding that a reasonable employer could have dismissed for the remark and that the ET had substituted its own judgment. It indicated that the contribution issue might otherwise be remitted.
3. Employment Tribunal: by a majority, found the dismissal unfair and assessed the nurse’s contribution to her dismissal at 25 per cent.