Sandwell & West Birmingham NHS Trust v Westwood - Unfair dismissal, gross misconduct, and tribunals substituting their views for that of employer [2009] EAT

A detailed examination of (1) the question of whether, and how, in an unfair dismissal case, an employment tribunal substitutes its own view for that of the employer rather than analysing the employer's approach; and (2) "gross misconduct", which must amount to either "a deliberate and wilful contradiction of the contractual terms" or else "very considerable negligence, historically summarised as “gross negligence”.

Staff Nurse Ms Westwood was dismissed for gross misconduct over her handling, with a colleague, of a difficult patient. An employment tribunal concluded that her dismissal was unfair - both investigation and disciplinary hearing were deficient, dismissal fell outside the range of reasonable responses, and the matter should not have been categorised as "gross misconduct". It considered that the Trust had placed too great an emphasis on the professional requirements placed on Ms Westwood by virtue of her qualifications and membership of a professional body (Nursing & Midwifery Council), by not only referring her case to the NMC but assessing her behaviour against those standards throughout the disciplinary hearing. It rejected the argument that there was contributory fault by Ms Westwood, in that her behaviour had fallen far short of the professional standards required of her, describing this as an "overstatement of the gravity of her fault".

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