- February 8, 2013
- Posted by: Josiah Hincks Solicitors
- Category: Employment Law Updates
A nurse who came under investigation after serious failings in the provision of care were uncovered at a north London home for the elderly has failed to convince the Court of Appeal to breathe new life into her unfair dismissal claim. The court ruled that her employers were entitled to view it as a case of gross misconduct and that her dismissal was within the range of reasonable responses.
When senior managers of the private company that owned the care home made an unannounced visit in the early hours of the morning, they found trolleys obstructing fire doors and the nurses’ station empty. Members of nursing staff were observed to be dozing and the appellant was seen with her eyes closed and ‘was thought to be asleep’. It was also noted that some patients had no call bells, some had been given double incontinence pads or were lying on towels and that bedrail charts had not been completed.
Subsequent investigations by the company revealed that the appellant had failed, over a three-hour period, to carry out observations on a patient who had suffered a suspected fractured hip in a fall and was awaiting the arrival of a doctor. The appellant was also said to have falsified a record so as to indicate that another patient had had a drip feed changed when that had not in fact been done.
After an internal disciplinary procedure, the appellant was dismissed on grounds of gross misconduct. At first instance an employment tribunal upheld her unfair dismissal claim and awarded her £18,000 compensation; however that decision was subsequently reversed by the Employment Appeal Tribunal (EAT).
Dismissing the nurse’s appeal, the court ruled that her employer was entitled to consider that her failings amounted to gross misconduct and that the tribunal had erred in substituting its own views as to the seriousness of her lapses for those of her employer. There was no error of law in the EAT’s conclusion that the tribunal’s decision ‘could not stand’ and that the appellant’s dismissal was ‘within the band of reasonable responses’ open to her employer.