A staff nurse who was sacked from her job after making comments to a naked patient was unfairly dismissed, an appeal court has found.
The nurse had just finished a night shift when she volunteered to help restrain a naked patient who was having a fit. She had to straddle his genitals, and commented that ‘it’s been a few months since I have been in this position’.
Despite no member of the public, nor the patient, being aware of the comment, the nurse was sacked for gross misconduct and took her employer, NW London Hospitals NHS Trust to an Employment Tribunal.
The Tribunal found that the nurse was unfairly let go from her job, finding that the comment was at worst, lewd, and most people would find it merely humorous.
The NHS Trust appealed this decision, and this appeal was allowed on the basis that the Tribunal had taken into account an irrelevant factor when assessing that a large proportion of the population would not be offended by the comments.
The Nurse appealed this decision and the Court of Appeal restored the Tribunal’s decision, ruling that it did not substitute its own view of a dismissal for that of the employer, when they regarded how a large percentage of the population would view a lewd comment.
Phil Richardson, employment law solicitor at Stephensons Solicitors LLP, said: “This case was very complex and after several appeals, the Tribunal’s decision was restored.”