In Kuteh v Dartford and Gravesham NHS Trust, the Court of Appeal held that a nurse was fairly dismissed for gross misconduct when she had continued to initiate inappropriate conversations about religion with patients following a management instruction not to do so.
Mrs Kuteh is a Christian who worked for Dartford and Gravesham NHS Trust as a nurse, with responsibility for assessing patients who were due to undergo surgery. This involved asking about their religion. Following complaints from several patients that Mrs Kuteh had initiated unwanted religious discussions with them during their assessments, she was given an instruction not to discuss religion with patients again unless requested to do so. However, there were three further incidents: one patient complained that she had given them a Bible and said she would pray for them; another that she had preached at her; and another that she had asked him to sing a psalm with her. Following disciplinary proceedings, Mrs Kuteh was dismissed for gross misconduct on the grounds that she had failed to follow a reasonable management instruction not to discuss religion with patients; behaved inappropriately by having unwanted discussions with patients about religion; and acted in breach of the Nursing and Midwifery Council (NMC) Code by failing to express her religious beliefs in an appropriate way.
Mrs Kuteh brought a claim for unfair dismissal in the Employment Tribunal. She also claimed that the NMC Code had to be interpreted in a way compatible with an employee’s rights to freedom of thought, conscience and religion under Article 9 of the European Convention of Human Rights (ECHR).
The Employment Tribunal held that the investigation and disciplinary procedure carried out by the Trust were fair and reasonable, and that the decision to dismiss Mrs Kuteh for gross misconduct was within the band of reasonable responses. It also dismissed the ECHR claim because she had been inappropriately proselytising, ie seeking to spread her beliefs rather than being prevented from manifesting them. The Employment Appeal Tribunal (the EAT) refused Mrs Kuteh permission to appeal, and she appealed that refusal to the Court of Appeal on grounds that the EAT had failed to interpret the NMC Code correctly and to consider the distinction between true evangelism and improper proselytism.
The Court of Appeal unanimously dismissed Mrs Kuteh’s appeal. It ruled that although Article 9 of the ECHR protected proselytising, it did not protect improper proselytism. It was also relevant that the Trust did not have a blanket ban on religious speech in the workplace and had only considered it to be inappropriate for Mrs Kuteh to initiate discussions about religion. Even bearing in mind the importance of the right to freedom of religion, the Tribunal had been correct to conclude that the dismissal was fair. The EAT had also been correct to regard the appeal as having no reasonable prospect of success.
This case illustrates that employees are unlikely to succeed in a claim where they have been given a management instruction to stop proselytising in their workplace but continue to do so. Tribunals will also be careful to distinguish between the manifestation of a religious belief and the inappropriate promotion of that belief.