Employment law update – improper remark did not merit dismissal

I found this article relating to Employment Law which I thought may be of interest. So here it is for you

Removing a person’s livelihood is extremely serious and should only be considered when there really is no alternative. This applies even where an incident might constitute gross misconduct. Employers should consider all mitigating circumstances very carefully. If in doubt, err on the side of caution.

Laura Bowater, a nurse employed by the Northwest London Hospitals NHS Trust, had finished her 12-hour shift. She volunteered to stay on to help to restrain a naked patient who was having an epileptic fit. There was something of a struggle, during which Ms Bowater sat astride the patient’s naked genitals, at which point she made a comment along the lines of “it’s been a while since I’ve been in this position with a man underneath me”. No member of the public was present to hear the remark and there was no evidence that the patient was sufficiently alert to have heard the remark.

The hospital considered that Ms Bowater had used unacceptable and unprofessional method of restraint on the patient; and made a sexual remark about the patient. She was dismissed. When Ms Bowater complained that she had been unfairly dismissed, the court agreed and found that the Hospital’s response was outside the “range of reasonable responses” because:

she had not been trained in restraint procedures;
she had volunteered to help, having finished a 12-hour shift;
the comment was made at the end of a very stressful experience, working on the front line of a crisis situation;
the comment was directed at herself, not specifically at the individual patient;
the comment could, at worst, be described as lewd, but “a large proportion of the population would consider it to be merely humorous”;
although it was made in an area to which the public could be admitted, no member of the public was, in fact, present; and
she had a clean disciplinary record.

Employers must look at all the circumstances when deciding whether or not to dismiss. In this case it was unreasonable to dismiss a good employee for a single remark made in a stressful situation. Get and stay up-to-date with employment law in no time at all with our Law on the Move® (LOTM). This essential tool kit combines audio and interactive webinar updates, a short summary of the key points and – most importantly – tells you what you have to do and when to do it.


On 28th June 2011, Russell HR is running a one day training course on “Pre-Trial Preparation for an Employment Tribunal (ET1 to trial)”. Bookings received before 31st of May will benefit from a 10% discount. CIPD members can also claim an additional 5% discount.

Russell HR Consulting provides expert knowledge in the practical application of employment law as well as providing employment law training and HR support services. For more information, visit our website at www.russellhrconsulting.co.uk or call a member of the team on 0845 644 8955.

Russell HR Consulting offers HR services to businesses nationwide, including Buckinghamshire (covering Aylesbury, High Wycombe, Milton Keynes, Bedford, Banbury, Northampton, Towcester and surrounding areas), Nottinghamshire (covering Chesterfield, Mansfield, Nottingham, Sheffield, Worksop and surrounding areas) and Hampshire (covering Aldershot, Basingstoke, Reading, Farnborough, Fareham, Portsmouth, Southampton and surrounding areas).
Kate Russell started Russell HR Consulting in 1998 and now divides her time between advising businesses of all sizes on HR issues, and delivering a range of highly practical employment law awareness training to line managers, including a range of public workshops. Her unique combination of legal background, direct line management experience and HR skills, enables Kate to present the stringent requirements of the law balanced against the realities of working life. She is a senior presenter for several companies and a popular public speaker. Kate completed an MA in strategic human resource management in 2004.
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