Removing a person's livelihood is extremely serious and should only be considered when there really is no alternative. This applies even where an incident might constitute gross misconduct. Employers should consider all mitigating circumstances very carefully. If in doubt, err on the side of caution.

Laura Bowater, a nurse employed by the Northwest London Hospitals NHS Trust, had finished her 12-hour shift. She volunteered to stay on to help to restrain a naked patient who was having an epileptic fit. There was something of a struggle, during which Ms Bowater sat astride the patient's naked genitals, at which point she made a comment along the lines of "it's been a while since I've been in this position with a man underneath me". No member of the public was present to hear the remark and there was no evidence that the patient was sufficiently alert to have heard the remark.

The hospital considered that Ms Bowater had used unacceptable and unprofessional method of restraint on the patient; and made a sexual remark about the patient. She was dismissed. When Ms Bowater complained that she had been unfairly dismissed, the court agreed and found that the Hospital's response was outside the "range of reasonable responses" because:

1. she had not been trained in restraint procedures;
2. she had volunteered to help, having finished a 12-hour shift;
3. the comment was made at the end of a very stressful experience, working on the front line of a crisis situation;
4. the comment was directed at herself, not specifically at the individual patient;
5. the comment could, at worst, be described as lewd, but "a large proportion of the population would consider it to be merely humorous";
6. although it was made in an area to which the public could be admitted, no member of the public was, in fact, present; and
7. she had a clean disciplinary record.

Employers must look at all the circumstances when deciding whether or not to dismiss. In this case it was unreasonable to dismiss a good employee for a single remark made in a stressful situation. Get and stay up-to-date with employment law in no time at all with our Law on the Move® (LOTM). This essential tool kit combines audio and interactive webinar updates, a short summary of the key points and – most importantly – tells you what you have to do and when to do it.

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