The Court of Appeal has recently upheld a decision of the Employment Tribunal that a nurse was unfairly dismissed for making a single lewd comment during the restraint of a patient.

Ms Bowater was employed as a Senior Staff Nurse at Central Middlesex Hospital and assisted with the restraint of a patient who was having an epileptic fit. The doctor in charge of the patient had to remove the patient’s trousers and underwear in order to administer an injection. The struggle to restrain the patient resulted in Ms Bowater sitting astride the patient. Whilst restraining the patient, Ms Bowater said something along the lines of, “It’s been a few months since I have been in this position with a man underneath me”.

Following an investigation into the incident, disciplinary action was taken against Ms Bowater and she was dismissed for using an unacceptable and unprofessional method of restraint on the patient and making an inappropriate remark.

Ms Bowater brought a claim for unfair dismissal against the NHS Trust.

The Tribunal upheld her claim. It found that the decision to dismiss Ms Bowater fell outside the band of reasonable responses which a reasonable employer could have made. Key to the Tribunal’s decision in relation to the issue of restraint was the fact that Ms Bowater had not received any training of the restraint process and no proper restraint policy had been implemented. In relation to the issue of the lewd comment, the Tribunal considered that the comment was made at the end of a very stressful experience working on the front line of a crisis situation, and it was clearly intended to be humorous - at worst, it could have been described as lewd but a large proportion of the population would consider it to be merely humorous. Furthermore, although the comment had been made in a public area, no members of the public were in fact present to hear it, and Ms Bowater had directed the comment at herself rather than at the patient. The Tribunal concluded that in all these circumstances, the comment was not sufficient in itself to deprive Ms Bowater of her career in nursing.

The EAT overturned the decision of the Employment Tribunal. Whilst it accepted that the inappropriateness of the restraint applied to the patient would not, in the absence of any authorised or adopted procedure, justify dismissal, the decisive factor in its decision was the remark made by Ms Bowater. The EAT considered the comment to be such that it would entitle a reasonable employer to make a decision to dismiss in that it amounted to sexual innuendo involving sexual relations with a patient.

Further, the EAT was of the view that in making its decision, the Employment Tribunal had wrongly substituted its own opinion of whether dismissal was a reasonable response. The EAT found the Tribunal’s findings to be perverse.

Ms Bowater successfully appealed to the Court of Appeal.

Whilst the Court of Appeal held that Ms Bowater’s conduct was rightly made the subject of disciplinary action, it considered that the Employment Tribunal had not substituted its own opinion for that of the Trust and that it had applied the correct legal test in considering whether the Trust’s decision to dismiss the Claimant was within the range of reasonable responses open to a reasonable employer.

The Court of Appeal was of the view that the EAT was overcritical in its disapproval of the Employment Tribunal’s decision and that the Tribunal had carefully set out the evidence on which it based its decision.

In this case, the remark made by Ms Bowater was a single one-off comment that had been made in a pressurised working environment. Whilst the Trust was correct in commencing disciplinary action against Ms Bowater, this case highlights the requirement for employers to give full consideration to all the circumstances of a case when making a decision whether or not dismissal is the appropriate punishment.