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 EWCA Civ 63; LTL 03/02/2011, Court of Appeal - Ben Cooper QC, Deshpal Panesar
An employment tribunal had been entitled to find that the summary dismissal of a nurse for making a lewd comment during restraint of a patient was unfair and outside the band of reasonable responses open to the NHS Trust employer. The Employment Appeal Tribunal had erred in substituting its own views for those of the tribunal when finding that the tribunal's decision was perverse.
The appellant nurse (B) appealed against a decision of the Employment Appeal Tribunal that an employment tribunal's finding that she was unfairly dismissed by the respondent NHS trust (N) was perverse.
B had made a sexual comment when sitting astride a patient (P) during a restraint procedure. A complaint was made some six weeks later regarding her conduct. Following an investigation, she was summarily dismissed for gross misconduct. The employment tribunal found that the comment could be described as lewd but that most people would consider it to be merely humorous. It held that the decision to dismiss B fell outside the band of reasonable responses a reasonable employer could have adopted. The EAT found that the tribunal had wrongly substituted its own opinion of what would have been reasonable, and that it had taken account of an irrelevant factor when finding that B's remark would be considered to be merely humorous.
HELD: (1) The decision for the employment tribunal had been whether N's decision to dismiss B was within the range of reasonable responses open to a reasonable employer and the tribunal had correctly directed itself and applied the correct legal test. It was common ground and clearly relevant that B's remark was intended to be humorous, just as it would have been relevant if the remark had been seen to be insulting to a patient. The EAT was over critical and wrong in its criticism of the tribunal's finding that a large proportion of people would find the lewd remark humorous, and its conclusion that that finding demonstrated that the tribunal had substituted its own opinion for that of N was a non-sequitur. The tribunal had carefully set out the primary facts and N's view of them. It was clearly aware of the context in which the incident took place and was entitled to find that summary dismissal was outside the range of reasonable responses to B's conduct. B had made a misguided and wholly inappropriate remark which was intended to be humorous, no member of the public was present and there was no evidence that P was conscious of it having been made. It was significant that neither the doctor nor the nurse in charge had admonished her at the time of the incident or reported her conduct. B's conduct was rightly made the subject of disciplinary action and the opinions of the experienced professionals who decided that summary dismissal was appropriate should be respected. However, it was for the employment tribunal to decide whether that was a reasonable response to B's conduct and it was entitled and correct to decide that summary dismissal was wholly unreasonable in the circumstances. Its decision was dismissed relatively cursorily by the EAT, which, apart from the reference to humour, treated the issue as one of judgment. The EAT's judgment was wrong and the tribunal's decision would be restored (see paras 9-17 of judgment). (2) It was important in cases of the instant kind that the EAT paid proper respect to decisions of the employment tribunal. It was the employment tribunal to whom Parliament had entrusted the responsibility of making what were sometimes difficult and borderline decisions in relation to the fairness of dismissal. An appeal to the EAT only lay on a point of law and the EAT was not to substitute its own judgment under the guise of a charge of perversity (para.19).