Male nurse accused of kissing a patient wins unfair dismissal claim

‘Playful’ male nurse who faced allegations of kissing a patient with locked-in syndrome and insisting he was gay wins unfair dismissal claim

• Paolo Messeri was sacked from The Royal Hospital for neuro-disability in London
• A patient had accused him of kissing him and telling him that he was gay
• Employment tribunal sacked Mr Messeri for gross misconduct in February 2020
• But, he has now won a claim for unfair dismissal due to ‘insufficient evidence’ 
• Employment judge said some allegations were on dates when he wasn’t working

A male nurse who was sacked from a London hospital after a patient accused him of kissing him, touching his bottom and insisting he was gay has won an unfair dismissal case.

The patient claimed Paolo Messeri repeatedly touched him inappropriately and pinched him against his will as he lay paralysed in his bed.

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 sacked from The Royal Hospital For Neuro-disability in London for gross misconduct in 2020.

But he has now won his claim for unfair dismissal after the tribunal ruled there was insufficient evidence against him.

An employment judge said the hospital should have been a ‘little more circumspect’ about the allegations against Mr Messeri as some referred to dates when he was not at work.

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. But he has now won his claim for unfair dismissal after the tribunal ruled there was insufficient evidence against him (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.

The tribunal heard that, in November 2019, X sent an email to the specialist hospital in Putney, south west London, alleging his married carer Mr Messeri had been inappropriately touching him.

The patient said: ‘This began with pulling the hair on my arms and pinching my upper body, to touching me and inserting fingers into my ears and nose and trying to kiss me and continually accusing me of being gay.

‘I’m most definitely heterosexual and I’m not the one struggling with my sexuality.

‘This highly unprofessional and unpleasant behaviour has been going on for more than a year – last night has prompted me to write this email.

‘He blatantly behaved this way in front of 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.’

The next day he said: ‘I would like it known from the beginning that I am in no way homophobic.

‘While I have sympathy for his recent losses of his father and unborn child it doesn’t condone his behaviour.

‘What has concerned me the most is that he physically restrained my head to prevent me from reaching the call bell and getting help.

‘In the last 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 Mr Messeri, who worked at the hospital for around four years, tried to kiss him on the lips and the nurse was subjected to a disciplinary investigation. 

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’.

A tribunal report said: ‘[Mr Messeri said] he had a good relationship with X and that to cheer him up he might say to him “you OK? You want a kiss from me?”

‘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’.

At a disciplinary hearing, Lesley Mill, director of service delivery, found there was not enough evidence to conclude Mr Messeri tried to kiss the patient, accused him of being gay, patted his bottom, or pulled hairs from his chest.

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 also notes that, according to the claimant, X had made a number of complaints in the past. There was no evidence to suggest such complaints had been investigated for veracity.

‘Having heard the evidence, the tribunal finds that the reason for the unfair and unreasonable treatment of Mr Messeri was a lack of care, attention to detail and focus [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’.

He won his claim of unfair dismissal. He also won a claim of indirect race discrimination after he was unable to have an Italian translator at his disciplinary hearing.

Compensation will be awarded at a later date.

The tribunal heard Mr Messeri cared for 16 ‘profoundly disabled patients’ at the specialist hospital and worked mainly night shifts.

He lost claims of harassment and sex discrimination.

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