The claimant nurse’s successful claim of unfair dismissal had been overturned by the EAT. She now sought re-instatement of the decision. In restraining a naked patient in the midst of a violent epileptic fit, she had made a lewd remark.
Held: The appeal succeeded. The tribunal’s decision had been said to have involved substituting its own opinion for that of the employer. This was incorrect. The ET had applied the correct test. The remark had been humorous in intent, and the patient was unaware of it. The employer’s decision had been correctly found to be outside the range of reasonable responses open to it.
Longmore LJ discussed the role of the EAT: ‘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.’
Judges:
Laws, Longmore, Stanley Burnton LJJ
Citations:
[2011] IRLR 331, (2011) 118 BMLR 163, [2011] EWCA Civ 63
Links:
Jurisdiction:
England and Wales
Citing:
Appeal from – North West London Hospitals NHS Trust v Bowater EAT 14-Dec-2009
EAT UNFAIR DISMISSAL: Reasonableness of dismissal
While assisting in the restraint of a patient admitted to AandE, the female Claimant senior nurse sat astride his naked genitals and made a lewd comment for . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 01 September 2022; Ref: scu.428525
