Employment Solicitors

By Louise Taft

In one of the more amusing Judgments released this year, the Court of Appeal confirmed that a Tribunal did not make an error of law when it considered that an employer overreacted to a lewd comment made by an employee.

After finishing her shift a staff nurse volunteered to help restrain a fitting patient, who was naked. She ended up straddling his genitals, at which point she said ‘it’s been a few months since I have been in this position’. Six weeks later she was dismissed for gross misconduct, despite her unblemished disciplinary record and the fact that no member of the public, nor the patient, was aware of the comment. A tribunal held that the nurse was unfairly dismissed, finding 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.

The Employment Appeal Tribunal had overturned the Judgment, saying that the Tribunal had substituted its own view for that of the employer.

The Court of Appeal said they were wrong to do so, criticising the Appeal Tribunal for itself substituting its view for that of the Tribunal. It said that the Tribunal had correctly applied the “band of reasonable responses” test by referring to the fact that a ‘large proportion of the population’ would have considered the comment to be merely humorous, and therefore dismissal was outside that band.

This case reinforces the principle that it is for the Tribunal to decide whether or not dismissal is within the “band of reasonable responses” to the alleged misconduct of an employee. It confirms that the Appeal Tribunal should respect the Tribunal’s decision on that point and should not interfere with findings of fact on this point. It implies that it is permissible for a Tribunal to take judicial notice of how it believes the majority of employers would react to alleged misconduct.

The case also shows that employers must take comments such as this in context and adopt a realistic and modern attitude when considering whether or not employees’ behaviour is acceptable or not.