Case No: A2/2010/0020
Neutral Citation Number: [2011] EWCA Civ 63
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge McMullen QC

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 03/02/2011
Before :

LORD JUSTICE LAWS
LORD JUSTICE LONGMORE
and
LORD JUSTICE STANLEY BURNTON
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Between :

	LAURA BOWATER	Appellant	
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	NORTHWEST LONDON HOSPITALS NHS TRUST	Respondent	
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(Transcript of the Handed Down Judgment of
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Deshpal Panesar (instructed by Thompsons Solicitors) for the Appellant
Ben Cooper (instructed by Cater Leydon Millard Limited) for the Respondent

Hearing date: 27th January 2011
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Judgment
Lord Justice Stanley Burnton : 
Introduction
1.	This is the appeal of Laura Bowater from the decision of the Employment Appeal Tribunal (“the EAT”) allowing the respondent’s appeal against the decision of the Employment Tribunal (“the ET”) that she had been unfairly dismissed by the respondent, her employer the Northwest London Hospitals NHS Trust.
The facts
2.	Between April 2002 and 1 December 2006, when she was dismissed on the ground of gross misconduct, the appellant was employed by the respondent as a Senior Staff Nurse.
3.	The incident giving rise to her dismissal occurred on 11 July 2006 at the Central Middlesex Hospital. The appellant was leaving the hospital at the end of her shift when she went to the aid of her colleagues who were seeking to restrain and to pacify a patient who was having an epileptic fit. I can take the facts of the incident from the decision of the EAT which quoted the decision of the ET:
7. The incident took place at 8.00pm on 11 July 2006 in the Accident and Emergency Department. The nursing team was under the control of Charge Nurse Lee. The medical care was in the hands of Dr Tong. A patient, D, was admitted with the assistance of two members of the London Ambulance Service. He is a strong young man. Dr Tong directed the nursing staff to place him on a trolley, he apparently being assisted on foot into the department. 
8. The Claimant was leaving her shift. She had stayed on to assist; it is not contended that she was doing anything other than attempting to help. The Tribunal described the incident:
“4.8	It was clear to the Claimant and a colleague of hers, who was also leaving work, that the nursing team had lost control of restraining patient D. He was extremely strong, his fitting was causing him to be violent towards the nursing team and Dr Tong was desperately trying to give patient D an injection of diazepam to calm him down before he injured himself or inflicted injury on the nursing team. To do this, Dr Tong required the nursing team to remove patient D’s trousers and underwear so that he could gain access to administer a shot of diazepam into patient D’s buttocks. The trousers of patient D were therefore removed leaving his bottom half naked. Although a hospital gown was placed over him, this was soon brushed off by the erratic movements of patient D.
4.9 Diazepam was then injected into patient D but it had no effect. Dr Tong then suggested that by attempting to restrain the patient, they may be exacerbating his hostile behaviour. In those circumstances, the advice he gave to the nursing team was to release whichever limb or part of patient D’s body each member of the team was holding. However, once this happened, patient D attempted to climb off the trolley and, in particular, turned himself over from lying in a prone position to lying in a supine position, thereby exposing his private parts to full view by the team.
4.10 The Claimant and her colleague had come to assist with the restraint of patient D. Restraining the patient was particularly hampered by reason of the size of the trolley with its sides in position, thereby preventing the restraint team from getting a good grip on a particular limb of patient D. (In retrospect it would have been much easier to have restrained patient D if had been held down on the floor.)
4.11 By this time, Dr Tong was desperately trying to administer a further injection, this time 4mg of lorazepam, and was leaning over the patient’s torso but was unable to administer the injection because of the patient thrashing around. Patient D was kicking his legs and flailing his arms.
4.12 It was at this point that the vital incident relevant to this case took place. The Claimant was at the bottom of the trolley, attempting unsuccessfully to hold down patient D’s ankles. So she climbed on to the end of the trolley and sat herself astride his ankles. This was at a time when the patient D was in the prone position. When patient D turned himself over into the supine position, he managed to kick the Claimant between her legs and lifted her up so that she then landed astride patient D’s naked genitals. That action of the Claimant allowed sufficient time when patient D was being restrained for Dr Tong to administer the further injection which eventually caused patient D’s hostile behaviour to subside. At no time during the incident was patient D capable of understanding what was going on or what had been said.”

9. It took some time (six weeks) for an allegation to surface that, while straddling the patient, the Claimant said this: “It’s been a few months since I have been in this position with a man underneath me”. Interviews were conducted by Ms Winn for the purposes of establishing the circumstances of the incident. A medical practitioner, Dr Wilson, reported to Ms Winn that the Claimant had made a similar comment to her while they were together in the washroom, shortly after the incident. Ms Winn interviewed Charge Nurse Lee. The Tribunal found no attempt was made to locate Dr Tong. Ms Winn came to the conclusion that the Claimant had been guilty of two relevant acts of misconduct, which were put in the following way:
“4.17.1	That she had used an unacceptable and unprofessional method of restraint on the patient D and
4.17.2	that whilst straddling patient D, who was naked, she had made a remark to the effect: ‘it has been a few months since I’ve been in this position with a man underneath me’.”

10. There was a case to answer because Ms Winn considered that the incident had occurred in the A&E Department, where it could have been witnessed by a relative or a member of the public. Ms Winn was alert to the problem that the Respondent had no proper training document in relation to restraint of a difficult person. The Claimant’s employment is regulated by a contract which incorporates the Code of Professional Conduct of the Nursing and Midwifery Council. This makes the Claimant personally accountable to ensure that she promote and protect the interests and dignity of patients, and at all times maintain appropriate professional boundaries in the relationship she has with patients (see clauses 2.2 and 2.3).
11. The case was heard by Ms Mackie, Senior Nurse, complimented on her experience in nursing by the Employment Tribunal, and Ms Le Tissier, head of HR governance. The outcome of that panel, where evidence was given by the Claimant and other witnesses, was this: 
“The findings of the panel are that your behaviour was:

•	An act of gross misconduct in that you breached the Nursing and Midwifery Council code of professional conduct: standards of conduct, performance and ethics. As a result of these findings the panel drew the following conclusions:

	Allegation 1
•	That you failed in your duty of care to your patients and clients who are entitled to receive safe and competent care (NMC para 1.4).
•	That you failed in your duty, in that you are personally accountable for ensuring that you promote the interests and dignity of patients and clients (NMC para 2.2).

Based on the evidence, the allegation is upheld and constitutes gross misconduct.
	
	Allegation 2
•	That you failed to behave in a way that upholds the reputation of the profession (NMC para 7.1).

Based on the evidence, the allegation is upheld and constitutes gross misconduct.

As a result of these conclusions, the decision of the panel is to summarily dismiss you. This decision has not been taken lightly and in considering the management case we considered that the [method of] restraint used by you was inappropriate and unacceptable in any situation but particularly with respect to this very vulnerable patient. The type of restraint used also placed the patient, you and your colleagues at risk. In addition, you made an unprofessional remark during this incident which was inappropriate and unprofessional ...”

12. Charge Nurse Lee was also disciplined, but he was given a first warning, which would lie on his file for six months. He was to be given further training and mentoring; and there would be further consideration given to a proper policy on restraint.
13. The Claimant appealed. This was heard by Ms Robb, who again attracts the compliments of the Employment Tribunal as being very experienced in nursing, Ms Francis, who was Divisional General Manager of Clinical Diagnostics, and Ms Doyle, interim Assistant Director of HR. Grounds were set out by the Claimant’s trade union representative and they included that the sanction imposed was too severe. The appeal panel rejected the appeal, and said this:
“In arriving at this decision, the panel took into account the following:

•	That you had a clear record before this matter
•	That you recognised that you had made a serious mistake
•	The panel acknowledges that restraint was needed to administer medicine, but that this was conducted in an inappropriate manner
•	The Trust are in the process of creating a restraint policy which will be ratified at the next Patient Safety Committee
•	Staff should have reported this clinical incident earlier and the panel have followed this up. I can confirm that appropriate action was taken with the responsible staff.”
4.	The appellant claimed to the ET that she had been unfairly dismissed. By a majority, it held that she had indeed been unfairly dismissed. The relevant part of the Tribunal’s decision is paragraphs 8.3 and 8.4:
8.3 Further, the majority consider that the decision to dismiss the Claimant fell outside the band of reasonable responses which a reasonable employer could adopt. Firstly, in respect of restraint, the Tribunal considers that the primary responsibility for the failure to restrain patient D lay partially with the Respondent in failing to have in place a proper restraint policy, partially with Dr Tong in requiring the nursing team to restrain patient D on a trolley rather than on the floor and finally with Mr Lee, the charge nurse in charge of the nursing team in failing to point out to Dr Tong that he was unable to restrain the patient and in failing to make any criticism whatsoever to the Claimant when she first got on to the trolley to assist. So far as the comment is concerned, the majority are of the view that to consider such a comment made in the circumstances in which it was made, is sufficient in itself to deprive a nurse of her career in nursing, cannot possibly be within the band of reasonable responses. In the majority view, no reasonable employer would have failed to take into account the mitigating circumstances, namely that 
(i)	the Claimant had not been trained in restraint processes by the Respondent (that is, the Respondent was to blame for this aspect of the matter).
(ii)	she had volunteered to help, having finished a 12 hour shift, when she would have been perfectly entitled to walk out the door, the possible consequences of which may not bear thinking about.
(iii)	the comment was made at the end of a very stressful experience, working on the front line of a crisis situation.
(iv)	the comment was directed at the Claimant, not specifically at the individual patient.
(v)	at worst the comment can be described as lewd but a large proportion of the population would consider it to be merely humorous.
(vi)	although it was made in an area to which the public could be admitted, no member of the public was, in fact, present.
(vii)	the Claimant had a clean disciplinary record.
8.4	In summary, the conclusion of the Tribunal is that the investigation (sic), bearing in mind the potential effect on the Claimant’s future nursing career, was not reasonable in the circumstances.”
5.	The EAT accepted that the inappropriateness of the restraint applied to the patient would not, in the circumstances in which the hospital had no authorised or adopted procedure, justify dismissal. It based its decision on the comment made by the appellant:
41. However, the principal reason, in that it was the trigger but for which the Claimant would not have been dismissed, was the comment. It is not only inappropriate, it is of sexual innuendo involving sexual relations with a patient. The Tribunal was wrong to say that it was directed at the Claimant herself. Before Ms Mackie, there was material upon which she could hold that this was demeaning to the dignity of the patient, it was made in a clinical area in front of health care professionals. Members of the public, or the patient’s family, might have heard it. It was regarded as a breach of the Code.
42. The question is: could a reasonable employer facing these circumstances have dismissed? These must include the circumstances as found by the management, that is, the words used by the Claimant, what she was doing at the time and where it took place. The facts in both charges against her were upheld. In law, context is everything. Making that remark then and there was gross misconduct as the minority held.
43. We consider the Tribunal has wrongly substituted its opinion of what would have been reasonable. One example will suffice. This is the finding that the remark would be regarded by a large proportion of the population as merely humorous. That is, as Mr Cooper correctly submits, to take account of an irrelevant factor. The relevant standard, of which no account was taken, was how would this comment be treated by a reasonable NHS Trust, and was the decision to dismiss, when it was made, outside the band of responses of a reasonable NHS Trust in those circumstances?
44. In our judgment, they are to be considered by the Employment Tribunal in the light of the material available to the employer. Ms Mackie’s evidence was clear and it was very substantially supported by the Tribunal. A reasonable employer could have done as her panel did. On that basis alone, this appeal must be allowed.”
The contentions of the parties
6.	On behalf of the appellant, Mr Panesar submitted that the EAT had not been entitled to find that the ET’s decision was perverse. The only specific matter referred to by the EAT was the statement by the ET that remark in question “would be regarded by a large proportion of the population as merely humorous”. That was not irrelevant: it was clear, and common ground, that the remark had been intended as humorous. The ET had carefully considered the evidence and had made a finding that was open to it.
7.	On behalf of the Respondent, Mr Cooper accepted that the defective method of seeking to restrain the patient could not of itself justify dismissal: the substantial reason for the appellant’s dismissal was her lewd comment. It was unacceptable in a clinical area of the hospital, as the appellant herself had accepted. He criticised the decision of the ET under four heads. He submitted:
(1)	The ET had wrongly substituted its own opinion for that of the respondent.
(2)	The ET had had regard to an irrelevant factor, namely the fact that the remark would be regarded by a large proportion of the population as merely humorous.
(3)	There was no proper evidential basis for the ET’s decision.
(4)	The decision of the ET was perverse.
It followed that the EAT had been entitled to substitute its own view of the respondent’s action and had rightly allowed the respondent’s appeal.
8.	In my judgment, none of Mr Cooper’s contentions is well founded. 
9.	As to (1), the decision for the ET was whether the employer’s decision to dismiss the appellant was within the range of reasonable responses open to a reasonable employer. The ET correctly directed itself in the first sentence of paragraph 8.3 of its decision and later again in the same paragraph. Furthermore in paragraph 12 of its decision, when summarising the view of the dissenting member of the Tribunal, the ET stated:
“Although the decision to dismiss the Claimant could be considered harsh, it could not be considered to be outside the range of reasonable responses available to a reasonable employer in the circumstances.”
It is evident that the majority of the ET applied the correct legal test.
10.	As to (2), it is common ground that the remark in question was intended to be humorous. That it was so was clearly relevant, just as it would have been relevant if the remark had been seen as insulting to a patient. In my view, the EAT was overcritical and wrong in its criticism of paragraph 8.3(v) of the ET’s decision. Moreover, the EAT was wrong to hold that this subparagraph demonstrated that the ET had substituted its opinion of what would have been reasonable for that of the respondent: this was a non sequitur.
11.	As to (3), the ET carefully set out the primary facts and the respondent’s view of them. Mr Cooper criticised the ET for not having set out and specifically addressed the views of Miss Mackie and Mrs Robb to the effect that the appellant’s remark justified her summary dismissal. But those views were expressions of judgment, based on primary facts. As I have already stated, the ET carefully addressed the primary facts; it was clearly aware of the context in which the events in question took place; and the majority made it clear why they disagreed with Miss Mackie’s and Mrs Robb’s judgment as to their seriousness.
12.	Contention (4) involves a judgment on the seriousness of the appellant’s conduct. It was not and is not suggested that she was not at fault in making the remark she did. However, I have no doubt that the majority of the ET were entitled to find that summary dismissal was outside the range of reasonable responses to the appellant’s conduct. The appellant made a misguided and wholly inappropriate remark, intended as humorous. No member of the public was present. There was no evidence that the patient was conscious of its having been made. It is significant that neither Dr Tong nor Charge Nurse Lee admonished the appellant at the time, or reported her conduct. The matter was not reported as a disciplinary matter for some 6 weeks. 
13.	The appellant’s conduct was rightly made the subject of disciplinary action. It is right that the ET, the EAT and this Court should respect the opinions of the experienced professionals who decided that summary dismissal was appropriate. However, having done so, it was for the ET to decide whether their views represented a reasonable response to the appellant’s conduct. It did so. In agreement with the majority of the ET, I consider that summary dismissal was wholly unreasonable in the circumstances of this case.
14.	In my view, it is significant that Mr Cooper did not invite us to subject the decision of the EAT to the same close scrutiny to which he subjected the decision of the ET. The decision of the ET was dismissed relatively cursorily in paragraphs 42 to 44 of the EAT’s decision. Apart from the reference to humour, it treated the issue as one of judgment. In my view, its judgment was clearly wrong.
15.	I would therefore allow the appeal.
16.	There remains the issue raised by the respondent as to the ET’s determination of the contribution of the appellant to her dismissal. The ET’s decision merely states:
“10. So far as contribution is concerned, the majority consider that the contribution of the Claimant was 25% to her own dismissal.”
The EAT said:
“If we are wrong, we would anyway send the contribution issue back to the same Employment Tribunal as there are inadequate reasons by the majority.”
17.	It is not clear to me whether the EAT envisaged the contribution issue going back to the ET for the majority to give reasons for their determination, or that the ET would be asked to make its determination afresh. The fact that the remittal was to be to the same ET indicates that the former was intended. On the basis that the ET was entitled to find that the dismissal was unfair, no basis other than the absence of adequate reasons was given by the EAT for a fresh determination to be made. Mr Cooper did not suggest that the finding of 25 per cent contribution was insensible or not properly open to the ET. The issues were fully before the ET, and it is evident from the earlier parts of their decision why they considered the appellant to have been at fault and the basis of their assessment of its degree. If remitted, the majority would doubtless say that they arrived at the figure of 25 per cent by reason of the matters set out in their decision. I therefore would not order remission, and would restore the order made by the ET.
Lord Justice Longmore:
18.	I agree with Stanley Burnton LJ that dismissal of the appellant for her lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case.  The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come.  But the employer cannot be the final arbiter of its own conduct in dismissing an employee.  It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer.  The ET made it more than plain that that was the test which they were applying, see paras 7.5 and 8.3 of the ET decision.  The EAT apparently did not believe that the ET decision were being true to their word, but there is just no evidence of that.
19.	It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET. It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt sometimes, difficult and borderline decisions in relation to the fairness of dismissal.  An appeal to the EAT only lies on a point of law and it goes without saying that the EAT must not, under the guise of a charge of perversity, substitute its own judgment for that of the ET.
Lord Justice Laws:
20.	I agree with both judgments.