Employment Lawyers: Breach Of Employment Contract and Gross Misconduct

In the case of Sandwell and West Birmingham Hospitals NHS Trust v Westwood [2009] UKEAT The Employment Appeal Tribunal, found against an employer, who summarily dismissed a nurse for leaving a patient on a trolley outside Accident and Emergency at night, on the basis that her actions did not amount to gross misconduct but rather only to a professional failure.

The nurse in question, Mrs Westwood was employed in A&E. During a night shift a ‘regular’ intoxicated patient was discharged but refused to leave. The patient still on his trolley, was removed from the hospital building by a colleague of Mrs Westwood with her help. He was then left outside the hospital building to spend the night on the trolley.

Her employers considered her actions to so be such a serious breach of her duties and Mrs Westwood was then summarily dismissed. Mrs Westwood claimed that she did not realise that the plan was to leave the patient outside the building overnight and that she only assisted her colleague in pushing the chair out of the way.

Following her successful claim for unfair dismissal, the employer appealed to the Employment Appeal Tribunal. This appeal was rejected. The basis of the ruling against the employer was that the precise nature of the allegation than an employee is facing should always be clear from the disciplinary rules and letters inviting employees to disciplinary hearings. The Employment Appeal Tribunal rules that the disciplinary panel should in most cases explore why the misconduct is considered to be so serious and whether it is deliberate, or gross negligence.

The disciplinary panel which dismissed Mrs Westwood did not explain its reasoning why it felt Mrs Westwood’s action amounted to gross misconduct. It was wrong for the disciplinary panel to simply assume that because the matter involved patient care an automatic dismissal without notice should follow the breach.

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