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    Lewd comments

    Employment tribunals are increasingly having to tackle the difficult issue as to whether comments made by employers or colleagues of claimants are sufficiently serious to have breached the implied bond of trust and confidence or, alternatively, are sufficiently serious to constitute harassment for the purposes of the Equality Act 2010.  

    One such recent example was in Bowater v N W London Hospitals NHS Trust decided earlier this year by the Court of Appeal.

    The facts were that after finishing her shift the claimant, who was a staff nurse, volunteered to help restrain a patient who was suffering from a fit.  The patient was naked.  The nurse ended up straddling the patient’s genitals at which point she said“it’s been a few months since I have been in this position” and a number of weeks later she was dismissed for gross misconduct although she had previously enjoyed an unblemished disciplinary record and as a matter of fact no member of the public, nor the patient, was aware of the comment she had made. 

    The original employment tribunal had held that the nurse 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.  

    On appeal by the employer to the Employment Appeal Tribunal the appeal was allowed on the basis that the tribunal had taken into account a factor which was not relevant, namely whether a “large proportion of the population” would have considered the comment to have been merely humorous.  The EAT found that the proper approach for the tribunal was to consider how a reasonable NHS Trust would have treated the comment. 

    The nurse appealed to the Court of Appeal and the Court of Appeal allowed her appeal restoring the tribunal’s original decision.  The Court of Appeal said that it was evident that the tribunal had applied the correct “band of reasonable responses” test and it was common ground that the remark was intended to be humorous, the tribunal was aware of the context in which the remark has been made, and the majority made clear why it disagreed with the employer as to the seriousness of the comment made.  The Court of Appeal criticised the EAT for being over-critical.  The Court noted that it was important in cases such as this that the Employment Appeal Tribunal should pay proper respect to the tribunal’s decision and that it should not under the guise of perversity substitute its own judgment for that of the tribunal.   

    Humphreys & Co. 09.02.2011