Veitch Penny LLP - Exeter | Crediton, Devon

Case

Sandwell and West Birmingham Hospitals NHS Trust –v- Westwood
Employment Appeal Tribunal – 17 December 2009

Issues

(1) Gross misconduct
(2) Disciplinary proceedings
(3) Professional code of conduct

Facts

Mrs Westwood was a staff nurse at Birmingham City Hospital working in the A&E department. She had worked at the hospital for seven years and had an exemplary record. During the nightshift she assisted another nurse to remove a patient who had been discharged but who refused to leave. The patient was described as "a regular attender at A&E".

The patient was believed to be intoxicated. The pair left the patient outside A&E lying on a trolley. Disciplinary proceedings were initiated. Mrs Westwood argued that her colleague had decided to remove the patient and had enlisted Mrs Westwood to help. Mrs Westwood had thought she was merely being asked to wheel the patient into the reception area, not outside the building. She had only realised what was happening when they were heading for the door. She said she had protested, but her colleague assured her that she had done this before with this patient and that it was the best way to encourage her to leave. To encourage the patient to leave, Mrs Westwood lowered the cot side and tried to persuade her to leave. The patient told her to "f*** off" and did not leave. Mrs Westwood then called security.

Mrs Westwood was dismissed. The Trust concentrated on their belief that her conduct was in breach of her professional code from the Nursing and Midwifery Council (NMC). It considered that she had a professional responsibility for her own actions. It also made no distinction between the culpability of the two nurses involved.

Mrs Westwood brought a claim of unfair dismissal. She was successful at the Employment Tribunal. Her failure of professional judgment did not constitute gross misconduct. The investigation of subsequent disciplinary procedure was also found to be "seriously deficient". The conduct must either be deliberate wrongdoing or amount to gross negligence. A 20% deduction was considered in relation to Mrs Westwood's contribution to her dismissal. The Tribunal felt it was unable to make this deduction in light of the poor procedure adopted by the Trust.

The Trust appealed the matter to the Employment Appeal Tribunal (EAT) arguing that the Tribunal had substituted its own view of the evidence and the seriousness of it. The Trust argued that it was entitled to regard the nurse's failure to follow the nurses' professional code as gross misconduct.

Decision

The Trust's appeal was unsuccessful in respect of the unfair dismissal decision. The unfair dismissal finding would stand. Gross misconduct involved either deliberate wrongdoing or gross negligence. Was it reasonable for the employer to regard the behaviour as gross misconduct? It should not be solely determined by the wording of the employer's policy or professional code. Mrs Westwood's breach did not constitute gross misconduct, simply because it was a breach of the NMC Code.

With regard to the deduction for contribution, the Tribunal was wrong to look at the conduct of the Trust. Only the conduct of the employee was relevant. This part of the decision was remitted to the Tribunal for rehearing.
With regard to the deduction for contribution, the Tribunal was wrong to look at the conduct of the Trust. Only the conduct of the employee was relevant. This part of the decision was remitted to the Tribunal for rehearing.

Comments

This is an interesting case following my recent case report on Bowater. It emphasises the importance of considering and categorising examples of gross misconduct carefully in an employer's policies and procedures. In each disciplinary situation, careful consideration needs to be given as to whether the conduct in issue is truly gross misconduct or otherwise via thorough investigation and an appropriate disciplinary procedure.

Rachel Billen – Associate Solicitor, Employment Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it