The Court of Appeal has restored an employment tribunal's decision that a nurse was unfairly dismissed for making an inappropriate comment.

The claimant in this case was a senior staff nurse at an NHS trust. One evening she went to the aid of colleagues who were struggling to restrain a patient having an epileptic fit. The patient was placed on a trolley and the nursing team removed his trousers so that a doctor could give him a pacifying injection. The claimant, struggling to restrain the patient, climbed onto the trolley and allegedly made an inappropriate comment. The trust subsequently dismissed her for gross misconduct on the grounds of her using an inappropriate method of restraint and having made an unprofessional remark.

The tribunal upheld the claimant’s claim, finding that dismissal was not within the range of reasonable responses available to the employer. A majority of the tribunal decided that, given the context in which the claimant made the remark, a reasonable employer would have taken the mitigating circumstances into account. These circumstances included the stress of the situation, the claimant’s clean disciplinary record and the fact that no member of the public overheard the comment. However, it was decided that the claimant had contributed to her dismissal by 25 per cent.

The judgment can be accessed here.