There are some newspapers that love to publish examples of ‘political correctness gone mad’, and the employer’s decision in Bowater v NW London Hospitals NHS Trust might be thought to justify the phrase. Ms Bowater, a staff nurse, volunteered to help restrain a patient who was having a fit and who happened to be naked. She ended up straddling him, at which point she uttered words which would do credit to any Carry On film, saying ‘it’s been a few months since I’ve been in this position’.
Six weeks later the unfortunate Ms Bowater was dismissed for gross misconduct. She had a spotless disciplinary record, and no member of the public, nor the patient, knew what she had said. The Employment Tribunal said that she had been unfairly dismissed, commenting that a ‘large proportion of the population’ would have considered her words to be merely humorous.
However the EAT held that the dismissal was fair, and that it was irrelevant what a ‘large proportion of the population’ might have thought. The Court of Appeal has now restored the Tribunal’s finding of unfair dismissal and said that the Tribunal had correctly applied the ‘band of reasonable responses’ test. The Trust had accepted that the comment was intended to be humorous, and the Tribunal had been aware of the context. The Tribunal had not impermissibly substituted its own view of a dismissal for that of the employer.
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