Thu 04 Jul 2019

True evangelism or improper proselytism or just a failure to follow a reasonable instruction?

The Court of Appeal assessed the fairness of a dismissal of a nurse for raising matters of religion with patients.

Kuteh v Dartford and Gravesham NHS Trust is not the first case arising from an employee bringing their religious beliefs into the workplace and it won't be the last.  However, this was argued as an unfair dismissal claim, not a discrimination claim based on religion or belief. 

Mrs Kuteh was a nurse responsible for carrying out assessments of patients who were due to undergo surgery in the near future.  The role involved the use of a pro forma document which included a simple question enquiring about the religion of the patient.  It came to the attention of the employer that some patients had made complaints about Mrs Kuteh raising matters of religion with them during the assessment.  This ranged from questions about what Easter meant to the patients to telling a patient that if he prayed to God he had more chance of survival.  Mrs Kuteh was spoken to by her matron and agreed not to engage on the topic of religion again but subsequent complaints were received from other patients.  Mrs Kuteh was suspended and investigated for failing to follow a management instruction (not to engage with patients on the matter of religion), for inappropriate conduct involving unwanted discussions on the topic of religion and for breaching paragraph 20.7 of the Nursing and Midwifery Council Code by expressing personal beliefs to people in an inappropriate way.  Following a disciplinary hearing she was dismissed, and was unsuccessful in her appeal.   

During the course of an unsuccessful employment tribunal claim for unfair dismissal Mrs Kuteh had referred to the fact that para 20.7 of the NMC Code must be interpreted in a way compatible with Article 9 ECHR (the right to freedom of thought, conscience and religion).  However, the employment judge distinguished inappropriate proselytising (not protected by Article 9) with being prevented from manifesting beliefs (protected by Article 9) and found Mrs Kuteh's conduct fell into the former category.   

The EAT decided an appeal made to them had no reasonable prospects of success and dismissed it and the matter proceed to the Court of Appeal on the basis that, firstly, the EAT had failed to consider the correct interpretation of para 20.7 of the Code and the distinction between appropriate and inappropriate expressions of religion; and secondly the EAT failed to acknowledge that Article 9 ECHR was applicable and to consider the distinction between true evangelism and improper proselytism. 

In the end the Court of Appeal gave these arguments pretty short shift.  Mrs Kuteh's barrister had argued that there was simply no authority for her employer to have a blanket ban on religious speech.  However, as the Court pointed out, this was not what the case had been about - it was an unfair dismissal claim where the employer considered it inappropriate for Mrs Kuteh to initiate discussions about religion and she disobeyed a lawful instruction not to do so.  The employer had formed a genuine and reasonable belief based on a reasonable investigation that Mrs Kuteh was guilty of misconduct.  

For all the references to religion in this case, it was a misconduct dismissal for failing to following a lawful management instruction so to some extent the fact that the misconduct in question involved religion was irrelevant.  A potentially fair reason for dismissal had been identified and a fair and reasonable procedure had been followed, with dismissal being a sanction that was within the band of reasonable responses.   

So was it an oversight for Mrs Kuteh not to have included a claim for religious discrimination?  It could have been, but it seems unlikely that would have changed the result.  There is existing case law confirming that disciplining employees for inappropriately promoting religion in the workplace is not discrimination including Wasteney v East London NHS Foundation and  Chondol v Liverpool City Council - the latter being referred to by the employment tribunal, EAT and Court of Appeal in this case.  

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