In Bowater v NW London Hospitals NHS Trust the Court of Appeal (“CA”), no less, reminds all involved in unfair dismissal cases that tribunals must not substitute their own view of what they would have done if faced with the same facts as the employer was facing. The rule is “was the decision of the employer within the range of reasonable responses of a reasonable employer”. The tribunal may not share the view of the employer but must consider whether the employer’s decision was within that range. The tribunal has to remember that their view is NOT the only reasonable one of any given set of facts. It is not always easy for the Tribunal to undertake this exercise but since the rule has been around for nearly thirty years one would have expected them to have developed a means of dealing with it
In this case the Tribunal actually got it right , according to the CA. It was the Employment Appeal Tribunal(“EAT”) dealing with the employer’s appeal from the Tribunal that messed up. The CA held that the Tribunal did not wrongly substitute its own view of the dismissal for that of the employer by having regard to how, as the Tribunal put it, ‘a large proportion of the population’ would view a lewd comment, on which the dismissal was based. It said that the EAT must, in turn, not, substitute its own judgment for that of the tribunal.
The facts are unusual: after finishing her shift B, a staff nurse, volunteered to help restrain a fitting patient, who was naked. After a number of difficulties involving the patient’s behaviour and the fenced bed on which he lay she ended up straddling his genitals, at which point she said ‘it’s been a few months since I have been in this position’. No member of the public heard this (although in a public area of the hospital) and the patient was unaware of it because of his condition. She repeated the remark to a doctor when they were in a washroom shortly afterwards.
Six weeks later she was dismissed for gross misconduct, despite her unblemished disciplinary record over more than four. A tribunal held that B 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 EAT allowed the employer’s appeal, holding that the tribunal had taken into account an irrelevant factor with its ‘large proportion of the population’ test. Instead, it should have considered how a reasonable NHS Trust would have treated that comment. B appealed.
The incident occurred in December 2006. In January 2011, last week, the Court of Appeal eventually allowed the appeal, restoring the original Tribunal’s decision. It held that it was evident that the Tribunal had applied the correct ‘band of reasonable responses of a reasonable employer’ test. It was accepted on both sides that the remark was intended to be humorous, the Tribunal was clearly aware of the context in which it had been made, and the majority made clear why it disagreed with the employer as to the seriousness. The EAT had been over-critical. The Court noted that it is important in such cases that the EAT pays proper respect to the Tribunal’s decision, and that it should not substitute its own judgment for that of the Tribunal and not by typifying the finding the Tribunal’s decision as perverse. Perversity in a Tribunal decision is one rare means of successfully appealing a Tribunal decision
