Rarely does a case come along which so effortlessly transports even the most humourless reader to the world of the “Carry On” film. Bowater v North West London Hospitals NHS Trust does just that, one of those decisions that you suspect HR knew all along would blow up in their faces.
Ms B was a Nurse at the Central Middlesex Hospital and one evening helped to restrain a patient, Mr D, who was having an epileptic fit. The fit caused Mr D to thrash about such that eventually he was placed on a trolley and his trousers were removed so that he could be given a pacifying injection. In the struggle, Ms B climbed onto the trolley to hold Mr D down by the ankles. She was then thrown about violently and ended up straddling Mr D’s naked genitals. Her reaction? “It’s been a few months since I have been in this position with a man underneath me”. Cue Sid James laugh.
Unbelievably, despite the fact that neither Mr D nor any member of the public heard the comment, Ms B was dismissed for gross misconduct. At first instance, common sense prevailed and the Employment Tribunal found that Ms B had been unfairly dismissed. It took into account that although at worst, Ms B’s comment could be described as lewd, “a large proportion of the population” would have regarded it as a joke. However, the Employment Appeal Tribunal overturned this decision, saying that Ms B’s comment contained sexual innuendo and could have been (though in fact was not) overheard by the patient’s family or members of the public. The EAT also felt that the Tribunal had wrongly used the “large proportion of the population” test, since this has never been the determinant of what it is sensible to say at work. Was this the end for jokes at work?
Fortunately, the Court of Appeal restored the Tribunal’s original decision. It noted as clearly relevant that Ms B’s comment was intended to be humorous, even though it is well established at law that the intention behind that sort of conduct, even if it is to amuse, is no defence to a claim of harassment (though it may go to the gravity of it and hence to the question of how far it is reasonable to dismiss for it).
So sexual innuendo and lewd comments are now acceptable at work so long as intended to be amusing to a large proportion of the population? Not so fast. The Court of Appeal appears to have accepted that a bit of banter is acceptable if the circumstances excuse it. What this means is unclear, except to the extent that this case should certainly not be taken as carte blanche to allow a culture of innuendo to develop at work. Discrimination legislation in the UK protects employees from banter, including sexual innuendo, which has the effect of violating their dignity or creates an intimidating, humiliating, hostile degrading or offensive environment. It is hard to see that Ms B’s remark fell into any of these categories – it demeaned no-one and clearly got nowhere near “intimidating, humiliating, hostile or degrading”. That just leaves “offensive”. Really? If ever there was a case for a statutory obligation on employers and employees to just grow up and get a life, this is clearly the one.