Warning for NHS employers on gross misconduct, in decision on nurse's dismissal

Published: 15th January 2010

A recent decision of the EAT is a warning to NHS employers to tread carefully when identifying gross misconduct in your disciplinary rules and procedures and at disciplinary hearings. In the case of Sandwell & West Birmingham Hospitals NHS Trust v Westwood an unfair dismissal finding has been upheld despite strong arguments from the Trust that the Tribunal panel had substituted their own view for that of the disciplinary panel at the Trust. The Employment Appeal Tribunal also say that gross misconduct must involve either deliberate wrongdoing or gross negligence. Following this Judgment, it is important that any disciplinary panel carefully considers (and explains) why gross misconduct is being found.

Mrs Westwood was a staff nurse in A&E. During a night shift a patient, who had been considered to be intoxicated (and who was a regular attendee at A&E), was discharged but refused to leave. A colleague of Mrs Westwood decided to remove the patient by wheeling her outside and enlisted Mrs Westwood's help to push the trolley out of the building. The patient was left by the two nurses outside A&E lying on the trolley. Mrs Westwood argued that she had thought she was only being asked to wheel the patient into reception and had only realised the plan was to wheel the patient out of the building when they were heading for the door (at which point she had suggested to her colleague that they should not do it).The disciplinary panel focussed upon the fact that she was a professional responsible for her own actions and considered that wheeling the patient outside amounted to gross misconduct. They did not distinguish between the actions and intentions of the two nurses involved. The Tribunal found this to be an unfair dismissal, focussing upon the difference in intention between the two nurses and their own view of the witnesses' evidence.

The Trust appealed, 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 panel. This is something a Tribunal should not do and on the face of it the Trust's arguments appeared to have considerable merit. However the appeal was rejected by the EAT who focussed upon the fact that Tribunals are able to (and indeed must) assess whether the alleged conduct is capable of amounting to gross misconduct. The EAT define this relatively narrowly as applying to deliberate wrongdoing or gross negligence. They (perhaps surprisingly) conclude that the Tribunal was right to decide that this conduct did not fall into those categories, even though it was accepted to be "a failure of professional judgement", "serious", and "fell short of the high standards demanded of a nurse."

This is a reminder of the importance of carefully considering why your organisation considers certain actions to be gross misconduct or negligence, as opposed to simply misconduct. The precise nature of the allegation an employee is facing should always be clear from your disciplinary rules and letters inviting employees to disciplinary hearings. In all but the most clear cut cases, panels should explore why the misconduct is considered to be so serious and whether it is deliberate, or gross negligence. It is also very important to explain your reasoning in the panel's written decision. It must be remembered that the seriousness of the misconduct will be assessed by a Tribunal which is likely to have little, or no, experience of those issues which are important to NHS bodies. Those chairing disciplinary panels should not make the assumption that because all involved in patient care will consider that certain actions are reprehensible and justify dismissal without notice, a Tribunal will accept that is the case in the absence of clear disciplinary rules and documentation.

If this case raises any issues for your organisation, or you would like assistance with identifying the potential seriousness of any conduct issues, please speak to your usual contact in the Mace & Jones employment and HR team in Liverpool: 0151 236 8989 or Manchester: 0161 214 0500.