Contributory fault

Case 7: the facts

Staff nurse Ms Bidwell had worked for an NHS trust for over 15 years when her employer found out that she also worked regular night shifts at a private nursing home. As this meant that her working week was between 78 and 109 hours, the trust said her patients were at risk and dismissed her.

Bidwell’s contract only prevented her taking on outside work if it conflicted with her work for the trust. Although it referred to the 48-hour maximum that a worker is entitled to work, it also pointed out that workers can opt out from this.

A tribunal held that her dismissal was unfair for reasons including her length of service, her lack of previous disciplinary record or warning, and the fact that she had already reduced her hours at the nursing home and had offered to give up that job.

The ruling

The EAT upheld the tribunal’s decision and its award of £39,000 in compensation, which included a 30% reduction on the basis that she had contributed to her own dismissal. However, the EAT commented that it would have reduced this by a higher percentage had they been required to make the award.