Court of Appeal holds that decision to dismiss Christian employee who engaged in improper conversations about religion with patients was fair

In the case of Kuteh v Dartford and Gravesham NHS Trust [2019] EWCA Civ 818 the Court of Appeal (CA) held that it was not unfair for an NHS Trust to dismiss a Christian employee for proselytising to patients following management instruction not to do so.

Mrs Kuteh was a Christian and worked as a nurse for the Dartford & Gravesham NHS Trust (the Trust). In her role she was responsible for assessing patients who were due to undergo surgery, and as part of this she was required to ask them about their religion.

Several complaints were raised by patients that she had initiated unwanted religious discussion with them during their assessments. This was raised with Mrs Kuteh and she gave assurances that she would not discuss religion with patients again unless she was asked by a patient.

However, there were further incidents following this, with allegations that she had given one patient a bible, saying that she would pray for them, and preached at another, making them feeling uncomfortable. Matters came to a head when it was alleged that she had told a patient that the only way they could get to the Lord was through Jesus, gripped their hand very tightly, said a prayer that was very intense and asked them to sing a psalm to her.

Mrs Kuteh was suspended and, following an investigation and disciplinary hearing, was dismissed, for gross misconduct. This was on the grounds that she had:

• Failed to follow reasonable instructions issued to her to not discuss religion with patients unless they asked her to.
• Behaved inappropriately by having unwanted discussions with patients about religion that had resulted in complaints.
• Acted in breach of paragraph 20.7 of the Nursing and Midwifery Council (NMC) Code in relation to making sure that she did not express her personal beliefs (including political, religious or moral beliefs) to people in an inappropriate way.

She brought an unfair dismissal claim in the employment tribunal but not one for discrimination on the grounds of religion or belief under the Equality Act 2010. The employment tribunal found the dismissal to be fair and the Employment Appeal Tribunal (EAT) refused permission to appeal. Mrs Kuteh appealed to the CA against this refusal on the following grounds:

• That the EAT had failed to consider the correct interpretation of paragraph 20.7 of the NMC Code and the distinction between appropriate and inappropriate expressions of religious beliefs.
• That the EAT had erred in failing to acknowledge that Article 9 of the European Convention on Human Rights (ECHR) was applicable and to consider the fact sensitive distinction between true evangelism and improper proselytism, and to carry out a proper analysis under Article 9(2).

The CA unanimously dismissed her appeal. Although proselytising could fall within the rights protected by Article 9 of the ECHR, it was clear that improper proselytism was not. It found that a fair disciplinary process had been carried out and the decision to dismiss was reasonable. Mrs Kuteh had failed to follow a lawful management instruction. Even having regard to the importance of the right to freedom of religion, it was plainly open to the tribunal to conclude the Mrs Kuteh had not been unfairly dismissed.

Points to note…

It is interesting to note that Mrs Kuteh did not bring a religious discrimination claim, and the decision may well have been different had she done so. That being said, previous cases suggest that such a claim would likely have failed too. This is because Mrs Kuteh was dismissed for the improper manner in which she imposed her belief on patients. There is a difference between holding a belief and the improper manifestation of that belief by unreasonably imposing it on others.

Aside from this, this case is a useful reminder of the need for employers to show that in cases of dismissal for misconduct an employer needs to be able to demonstrate that: they believed an employee to be guilty of misconduct; they had reasonable grounds for believing that the employee was guilty of misconduct; and that at the time they held that belief, they had carried out as much investigation as was reasonable. Dartford and Gravesham NHS Trust had done this which then made reaching a finding that the dismissal was fair straightforward.