After a patient claimed he had been kissing, touching and insinuating that he was gay, a male nurse was fired from London’s hospital. The case was unfairly dismissed.
Paolo Messeri was alleged to have repeatedly touched the patient in an inappropriate manner and pinched him as he lay paralysed on his back.
The male patient said ‘playful’ Mr Messeri, who denied the allegations, was ‘always patting my bottom’ and saying ‘a big kiss for you my love’.
Italian Mr. Messeri was fired from The Royal Hospital For Neurodisability, London because of gross misconduct.
After the tribunal concluded that there wasn’t enough evidence to support his case, he won his fair dismissal claim.
According to an employment judge, the hospital needed to be “a little more cautious” about allegations made against Messeri because some of them referred only back when Messeri was not working.
Paolo Messeri was sacked from his job as a nurse at The Royal Hospital For Neuro-disability, in London after a patient accused him of kissing him, touching his bottom and insisting he was gay. After the tribunal found insufficient evidence, he was granted unfair dismissal. Stock image
The employment tribunal heard the patient, named only as ‘X’, has locked-in syndrome and is completely paralysed aside from limited head movement, facial expressions and eye movement.
To communicate, X uses an ‘eye-gaze system’, an electronic device which allows him to choose letters by looking at them when writing messages.
Tribunal heard that X had sent an email in November 2019 to Putney specialist hospital, south west London, in which he claimed Mr Messeri inappropriately touched him.
According to the patient, “This started with me pulling my hair and pinching my body. Then I touched me and tried to touch my nose. Finally, I was able to kiss my cheeks and get my fingers into my ears.
‘I’m most definitely heterosexual and I’m not the one struggling with my sexuality.
“This extremely unprofessional, and unsympathetic behavior has been ongoing for over a year. Last night prompted me into writing this email.
“He behaved in a blatant manner before other night staff.”
X, who also claimed ‘other male carers behaved this way, said ‘I won’t hesitate to contact the police’ and demanded: ‘In future I don’t want any aspect of my care done by male nurses.’
He said the next day, “I want it to be known from beginning that I am not homophobic.”
‘While I have sympathy for his recent losses of his father and unborn child it doesn’t condone his behaviour.
“What worries me most about him is his physical restraint of my head, to stop me reaching for the help line and getting it.
“In the past few weeks [he] was always patting my bottom and saying either “a big hug for you my love” or “a big kiss for you my love” as he left the room – so that he continued to do all this even though he could see I didn’t like it.’
X alleged that Mr Messeri had tried to kiss his lips. A disciplinary investigation was conducted on the nurse.
Mr Messeri denied allegations of trying to kiss the patient on the lips and ‘laughing’ at the patient when he said ‘just stop, I am not gay’.
According to a tribunal report,[Mr Messeri said]He was in a happy relationship with X. To cheer him up, he could say “you okay?” I want a kiss from you.”
‘When asked whether he had had conversations with X about his nose hair or put his fingers in his nose and ears, Mr Messeri said “I have talked to him about trimming his nose hair, I haven’t put my fingers in his nose or ears, but I have pointed it out to show him where the hair was”.’
A tribunal heard patient X was being cared for at The Royal Hospital For Neuro-disability in London in November 2019 when he emailed the hospital alleging his married carer Mr Messeri had been inappropriately touching him
X claimed colleagues witnessed incidents but when interviewed they said they did not see anything inappropriate, and said Mr Messeri was ‘quite playful’.
Lesley Mill was the director of service delivery and found no evidence that Mr Messeri attempted to kiss the patient. He also claimed he had been gay.
But, Ms Mill found Mr Messeri did insert his fingers into the patient’s ears and nose and asked if he wanted a kiss and sacked him for gross misconduct in February 2020.
The hospital claimed Mr Messeri’s ‘behaviour over time was likely to be due to cultural differences’.
Now, employment judge John Pritchard has ruled the hospital failed to show there was enough evidence for gross misconduct because there were flaws in X’s evidence.
At a disciplinary hearing in February 2020, Lesley Mill (pictured), director of service delivery, sacked Mr Messeri for gross misconduct
Judge Pritchard said: ‘In circumstances in which X had clearly stated the dates of the alleged misconduct, on some of which Mr Messeri was not at work, and in light of the evidence given by those individuals whom X clearly stated had witnessed the misconduct, it would have been reasonable for the hospital to be a little more circumspect about X’s allegations.
“The tribunal notes also that X has made a few complaints in the past. The evidence did not support the claim that such complaints were investigated.
After hearing all the evidence, it was concluded that Messeri was unfairly and unreasonably treated because he did not pay enough attention to details and care. [in the investigation].’
The judge added there was ‘insufficient evidence to show that Mr Messeri was culpable or blameworthy to the extent that [his behaviour] was perverse, foolish, bloody-minded or unreasonable’.
The claim of unfair dismissal was won. After he couldn’t have an Italian interpreter at his hearing, he also won indirect race discrimination.
At a later time, compensation will be paid.
The tribunal heard Mr Messeri cared for 16 ‘profoundly disabled patients’ at the specialist hospital and worked mainly night shifts.
He was denied harassment claims and discrimination based on sex.