In this stressful modern world of ours, employees may be forgiven for the odd bit of tomfoolery or witty banter to lighten the mood. Sometimes, even a more risqué joke is acceptable. The question is, where is the line between a Michael McIntyre chuckle and a Frankie Boyle gasp? The case of Bowater v North West London Hospitals NHS Trust concerned a nurse, a patient, some straddling and a memorable one liner … it also reminds us that, as with so much of employment law, the question is answered by applying the test of reasonableness.
Nurse Bowater, who was on her way home having finished a straight 12 hour shift, volunteered to help out some of her colleagues who were attempting to restrain a naked patient suffering from a severe epileptic fit. Bowater struggled to keep the patient still and eventually sat astride his waist so that medication could be administered. Whilst straddling the poor chap she remarked "it has been a few months since I've been in this position". It's ok, we laughed too!
The Trust however did not even break into a smile and decided that this 'comment' justified dismissal for gross misconduct. This was despite Bowater's flawless disciplinary record and the fact that no member of the public, nor the patient, was aware of the comment. So, was this a case of a sense of humour failure on behalf of the Trust or a fair and reasonable response to an act of gross misconduct?
The Employment Tribunal held that Bowater was unfairly dismissed. It found that, at worst, the comment could have been described as 'lewd' and that a 'large proportion of the population' would have considered it to be merely humorous. It reduced compensation by a small amount, 25% for contributory fault as the comment should not have been made in a professional workplace. The Trust appealed.
The EAT allowed the appeal, holding that the Tribunal should not have 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 that comment. Bowater appealed.
The Court of Appeal overturned the EAT's decision. It found that the Employment Tribunal was correct in applying the 'band of reasonable responses' test. It was clear that the remark was intended to be humorous in the context and did not justify dismissal, or, in other words, the decision to dismiss was outside the band of reasonable responses.
This case illustrates the need to apply common sense when dealing with incidents involving jokes made at work. There is no doubt that the comment was risqué and probably deserved some sort of action, but, in the circumstances, dismissal for gross misconduct was an overreaction. Given Bowater's unblemished 8 year record and the fact that all concerned, including the Trust, knew it was a joke, a quiet word was probably all that was required. There is no doubt that workplace humour is a minefield, but with your body armour of 'reasonableness' firmly on you should be able get through safely enough.