Nurse dismissed for sleeping on duty: wrongful dismissal claim succeeds but unfair dismissal fails
A Band 5 staff nurse with 15 years' service was dismissed for gross misconduct after allegedly sleeping on duty. The tribunal found the dismissal fair for unfair dismissal purposes but ruled the trust failed to prove gross misconduct, awarding £7,045.65 in notice pay.
2 min read · Last updated 18 May 2026
Case details
- #sleeping-on-duty
- #medication-error
- #incident-report-failure
- #race-discrimination-allegation
- #wrongful-dismissal
- #notice-pay
Key facts
- The claimant was employed as a Band 5 Staff Nurse from 17 June 2004 until dismissal on 1 July 2020.
- On 4 November 2019, the claimant was the lone RMN on night shift and was alleged to have slept on duty, failed to observe a patient take medication, and failed to complete an incident report.
- The respondent investigated and dismissed the claimant for gross misconduct, upholding three of four allegations.
- The claimant alleged his dismissal was due to his race (Indian), but the tribunal found no evidence of race discrimination.
- The tribunal found the dismissal was fair for unfair dismissal purposes but that the respondent did not prove actual gross misconduct on the balance of probabilities for wrongful dismissal.
- The claimant was awarded 12 weeks' notice pay of £7,045.65 by consent.
Timeline
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Employment start
Claimant commenced employment as a Staff Nurse Grade E.
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Incident on night shift
Claimant worked as lone RMN; alleged to have slept on duty, failed to observe medication, and not completed incident report.
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Email from support worker
Mr Roberts emailed raising concerns about the claimant's conduct on 4 November.
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Suspension risk assessment meeting
Meeting with Ms Legg; claimant not suspended but moved to day shifts.
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Investigation terms of reference
MC appointed to investigate allegations.
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Disciplinary hearing
First disciplinary hearing; adjourned for further investigation.
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Reconvened disciplinary hearing
Held via TEAMS due to COVID; claimant accompanied by union rep.
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Dismissal decision
LO summarily dismissed claimant for gross misconduct.
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Appeal lodged
Claimant appealed dismissal; did not raise race discrimination.
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Appeal upheld
MK upheld dismissal decision.
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Tribunal hearing (liability)
Three-day hearing on liability for unfair dismissal, wrongful dismissal, and race discrimination.
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Consent judgment on remedy
Parties agreed payment of £7,045.65 for 12 weeks' notice pay.
The legal issue
The tribunal had to decide whether the nurse was unfairly dismissed, whether his dismissal was an act of direct race discrimination, and whether he was wrongfully dismissed (i.e., whether the trust had proven actual gross misconduct justifying summary dismissal without notice).
The outcome
The tribunal dismissed the claims of unfair dismissal and direct race discrimination, but upheld the claim of wrongful dismissal.
- The trust's decision to dismiss for gross misconduct was within the range of reasonable responses, making the dismissal fair under the Employment Rights Act 1996.
- However, the trust failed to prove on the balance of probabilities that the nurse actually committed gross misconduct (e.g., sleeping on duty). Therefore, summary dismissal was not justified, and the nurse was entitled to his notice period.
- The nurse was awarded £7,045.65 by consent for 12 weeks' notice pay.
Lessons & takeaways
- Employers must distinguish between the test for unfair dismissal (whether the decision was within the range of reasonable responses) and wrongful dismissal (whether gross misconduct is proven on the balance of probabilities).
- Even if a dismissal is fair for unfair dismissal purposes, failing to prove actual gross misconduct can still result in a wrongful dismissal claim and notice pay.
- Length of service (here 15 years) does not automatically make a dismissal unfair if the employer follows a reasonable procedure and holds a genuine belief in misconduct.
When a fair dismissal is still a wrongful dismissal
This case highlights an important distinction in employment law: a dismissal can be fair for unfair dismissal purposes but still be wrongful if the employer cannot prove gross misconduct. The nurse, a Band 5 staff nurse with 15 years' service, was dismissed after an incident on a night shift where he was alleged to have slept on duty, failed to observe a patient take medication, and failed to complete an incident report. The trust investigated and dismissed him for gross misconduct.
The tribunal found that the trust had a genuine belief in the misconduct, carried out a reasonable investigation, and that dismissal was within the range of reasonable responses. This meant the unfair dismissal claim failed. However, for wrongful dismissal (breach of contract), the burden is on the employer to prove actual gross misconduct on the balance of probabilities. The tribunal found the trust did not meet this burden, so the nurse was entitled to his 12-week notice period.
What the trust could have done differently
The trust's failure to prove gross misconduct suggests that the evidence was not strong enough to justify summary dismissal. In particular, the allegation of sleeping on duty relied heavily on a support worker's email, and the nurse denied it. Employers should ensure that when dismissing without notice, they have clear and convincing evidence of gross misconduct. In this case, the trust might have avoided the wrongful dismissal claim by dismissing with notice or by gathering stronger evidence.
Why this matters for similar claims
Employees who are dismissed for alleged gross misconduct should be aware that they may have a wrongful dismissal claim even if their unfair dismissal claim fails. The key is whether the employer can prove the misconduct actually happened. For employers, this case is a reminder that the standard of proof for wrongful dismissal is higher than for unfair dismissal, and that a fair procedure alone does not protect against a breach of contract claim.
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