If you make a lewd comment or joke at work, might you be in trouble? Following the case of Laura Bowater this week the answer is yes, you may be.
It doesn’t take the law any further forward than it was before but it does highlight how workplace situations can get out of hand.
Ms Bowater was a nurse at the end of her shift at the Central Middlesex Hospital. She was called upon by a colleague to assist in restraining a naked male patient who was having an epileptic fit. At some point in the process she ended up astride him, near his genitals and said “‘It’s been a few months since I have been in this position with a man underneath me”.
A colleague took exception and made a complaint. Ms Bowater was subsequently dismissed and sued for unfair dismissal. The ET held that she had been unfairly dismissed and took into account the fact that the comment was self-deprecating against herself, made at the end of a long day and at a time when she hadn’t been obliged to continue working because she was off-shift. The patient had not heard the comment and neither had any members of the public. Furthermore she had a good record as a hard working employee.
Unfortunately the EAT to whom the Trust appealed disagreed and upheld the appeal. The employee appealed to the Court of Appeal (CA), which agreed with the ET and upheld the finding of unfair dismissal and slapped the EAT down in criticising it for substituting its own views for what was acceptable with that of the ET, who had actually heard the evidence in the first place.
So, common sense finally prevailed.
What was clear from this case is that these decisions are case specific. The CA’s finding does not mean that employees can make lewd comments in the workplace with impunity. Different facts will produce a different result.
It got me thinking though about what might have been the result had she, instead of uttering the comment orally, written it on Facebook or Twitter either on her way home (say on a smart-phone) or on her own PC when she got home. Would that have led to a different result? I should say there is no suggestion (that I have read) that Ms Bowater did any such thing, of course.
Let’s assume for a minute that the employer had a properly drafted social media policy in place that dealt with social media usage by employees tweeting/updating/blogging about work. The fact that they might be doing so in their own time, on their own hardware should not prevent an employer from taking disciplinary action if it felt that the comment had implications for the workplace.
In this hypothetical example she would have been releasing to the outside world a comment that while many would find humourous, would probably cause offence to the patient and his family if he recognised himself from the incident. Moreover, many people might also find the comment lacking amusement given that it might be taken to be an insult to a patient who was very unwell and in a vulnerable position. Would it pass the “mum test”? In other words, would the nurse have uttered that comment if her mother (or even the patient’s wife) been standing next to her? Probably not would be my guess.
Therefore, if I am right on this, the employer would probably have been justified in imposing a disciplinary sanction, which might even justify gross misconduct on the basis of a breach of trust.
Why such a different result? Crucially, the comment would not have been uttered in the heat of the moment and would also have been broadcast to a much wider audience, who would have been free to RT or pass on to their contacts.
Employers need to act with restraint and investigate these incidents thoroughly, giving full consideration to all relevant circumstances, rather than just rushing to discipline because it seems like the “right thing” to do.
- Unfair dismissal (bbc.co.uk)
- Employee sacked for Facebook comment claims victory (geeksaresexy.net)