Sandwell and West Birmingham Hospitals NHS Trust v Westwood
The claimant, A Westwood, was a staff nurse at Birmingham City Hospital’s accident and emergency (A&E) department. During a night shift, she helped another nurse remove an intoxicated patient who had been discharged, but refused to leave. The patient was left by the two nurses outside A&E, lying on a trolley. Sandwell and West Birmingham Hospitals NHS Trust invoked the disciplinary policy, and dismissed the employee for gross misconduct.
The trust had focused on the fact she had professional responsibilities and that she had breached her Nursing and Midwifery Council (NMC) code. The trust’s disciplinary code stipulated that failure to adhere to the employee’s professional code of conduct amounted to gross misconduct. Westwood issued a claim for unfair dismissal.
The employment tribunal found the employee’s failure of professional judgement had not amounted to gross misconduct, and that her dismissal for that conduct had been unfair. It also found the investigation carried out by the trust had been defective, and the conduct of the disciplinary hearing “seriously deficient”. The tribunal held that gross misconduct must comprise either “deliberate wrongdoing” or amount to “gross negligence”, and that no reasonable panel could have characterised what Westwood did as either.
The tribunal then considered the question of contributory fault, and decided that while it would have been minded to make a reduction of 20% on account of the claimant’s contribution to her dismissal, it would make no reduction given the trust’s “ineptitude”.
The trust appealed to the Employment Appeal Tribunal (EAT), arguing that the tribunal had effectively substituted their own view of the evidence and the seriousness of the conduct for that of the trust’s disciplinary panel. The trust argued it was entitled to regard failure to adhere to the NMC code as gross misconduct.
The EAT rejected this appeal, and held the question of what amounts to “gross misconduct” is a mixed question of law and fact.
The tribunal was correct to direct itself that gross misconduct involves either deliberate wrongdoing or gross negligence. The tribunal should then consider both the character of the conduct, and whether it was reasonable for the employer to regard it as gross misconduct on the facts of the case.
The character of the misconduct should not be determined solely by the employer’s own analysis and whether it was reasonable for the employer to believe that the employee had committed such misconduct. In this case, therefore, the employee’s breach of the NMC code did not necessarily amount to gross misconduct simply because the employer’s disciplinary code stipulated that it would. It was open for the tribunal to consider the conduct that had breached the code, and find that it could not reasonably be characterised as deliberate wrongdoing or gross negligence.
The EAT also considered contributory fault, and held that it is only the claimant’s conduct that should be considered by the tribunal when it decides whether to make a reduction to compensation in respect of contributory fault.
The tribunal had therefore erred in its approach in considering the trust’s conduct. The appeal in relation to the issue of contributory fault was therefore allowed and remitted for re-hearing before the tribunal.
Employers should take care when labelling certain types of behaviour as gross misconduct in their procedures and policies. There is the need to carefully consider why certain actions are considered to be gross misconduct or negligence, as opposed to just misconduct. Therefore in a disciplinary hearing, even where there is a clear breach of disciplinary policy, the employer must still ask itself whether the conduct involves either deliberate wrongdoing or gross negligence. Employers need to treat their disciplinary policy as guidelines, and consider each situation on its facts.
Another criticism made of the trust by the tribunal was its failure to properly explain the reasons behind its decision to dismiss the claimant. It is good practice, in any event, for employers to set out clearly in writing the reasons behind the decision to dismiss an employee.
Vanessa Hempstead, solicitor, Thomas Eggar