The Court of Appeal has ruled that a nurse who was fired for making an off-colour joke as she helped to restrain a patient who was having an epileptic fit was unfairly dismissed.
The 31-year-old patient, who was described as "extremely strong", had had his trousers removed so that doctors could inject his buttock. The nurse sat on his ankles to restrain his flailing legs. During the course of the fit, however, the patient turned onto his back, exposing himself and pushing the nurse forward so she ended up straddling him.
The nurse then remarked, "It's been a few months since I have been in this position with a man underneath me".
The appeal judges found that the senior staff nurse's remark would have been considered "merely humorous" by the majority of people, and was not sufficient to warrant her losing her job. The patient himself was unconscious when the remark was made, so there was no suggestion that he could have heard the nurse's comment.
The Watford Employment Tribunal upheld her original unfair dismissal claim, but North West London Hospitals NHS Trust successfully appealed the decision.
Lord Justice Burnton overturned that ruling, but also found that the nurse had "contributed" 25% to her own dismissal. The case will now be returned to the original tribunal for the nurse's unfair dismissal payment to be decided.
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