Unfair Dismissal: Dismissal of a Christian employee for proselytising was not unfair

Published 11 junio 2019

An NHS Trust did not unfairly dismiss a Christian nurse who had continued to proselytise to patients following a management instruction not to do so.

The facts

Mrs Kuteh, a committed Christian, was employed by Dartford and Gravesham NHS Trust as a nurse. She worked in the Intensive Therapy Unit and carried out assessments of patients who were due to undergo surgery. These patients would often be worried, suffering from stress and could be vulnerable. Mrs Kuteh used a form to carry out these assessments. The form required her to ask a simple question about the patient’s religion and to note the response. It did not open the door to further religious discussion.

Patients complained that Mrs Kuteh had raised matters of religion with them during their assessments. These complaints included a complaint by a patient who was about to undergo major surgery and was told by Mrs Kuteh that if he prayed to God he would have a better chance of survival.

The matron spoke to Mrs Kuteh and told her that it was not appropriate to discuss religious views. Mrs Kuteh assured her that she would not engage on the topic of religion unless a patient asked her to do so.

However, further complaints were received, including a complaint from a patient who was being treated for cancer, who said that Mrs Kuteh had told him that the only way he could get to the Lord was through Jesus. She told this patient that she would give him her bible, gripped his hand tightly and said a prayer that was very intense and asked him to sing a psalm with her. He described the encounter as “very bizarre” and “like a Monty Python skit”.

Following an investigation and disciplinary procedure, Mrs Kuteh was dismissed for failing to follow a management instruction, for inappropriate conduct, and breach of the Nursing and Midwifery Council (“NMC”) Code. This code states that employees should not express their personal beliefs in an inappropriate way.

Mrs Kuteh’s internal appeal was unsuccessful and she brought a claim of unfair dismissal. She claimed that the NMC Code had to be interpreted in a way that was compatible with an employee’s rights under Article 9 of the European Convention on Human Rights.

Article 9 provides that everyone has the right to freedom of thought, conscience and religion. This right includes freedom to manifest that religion or belief, in worship, teaching, practice and observance. There are limitations to this right which include limitations which are necessary for the protection of the rights and freedoms of others. Existing case law shows that Article 9 rights include, in principle, the right to try to convince others of beliefs, for example through teaching. However, a distinction is made between “bearing Christian witness and improper proselytism….”. “Improper proselytism” includes exerting improper pressure on people in distress or in need. Article 9 cannot be directly enforced in employment tribunals, but domestic law should be read to be consistent with Article 9 (and other Convention rights).

The employment tribunal rejected Mrs Kuteh’s Article 9 argument. It held that Mrs Kuteh’s conduct fell into the category of inappropriately proselytising beliefs. It also held that the investigation and disciplinary hearing carried out by the Trust was fair and reasonable and the decision to dismiss for gross misconduct was within the band of reasonable responses.

Mrs Kuteh appealed to the EAT, which dismissed the appeal, and then to the Court of Appeal. The Court of Appeal also dismissed her appeal. Reflecting on existing case law, it said that the distinction between proselytising (which is protected by Article 9) and improper proselytism, which is not protected, is valid. The Trust did not have a blanket ban on religious speech in the workplace. It only considered it to be inappropriate for Mrs Kuteh to initiate discussions about religion. Mrs Kuteh had been given a reasonable management instruction not to do this and had given assurances that she would not do so. In spite of this, she continued to initiate such discussions. The employment tribunal had found that the Trust’s procedure had been fair and that the decision to dismiss for misconduct fell within the band of reasonable responses. Even having regard to the importance of the right to freedom of religion, it was plainly open to the employment tribunal to conclude that the dismissal had not been unfair.

What does this mean for employers?

Mrs Kuteh did not bring a claim of religious discrimination, but it is likely that the decision would have been the same had she done so.

This case is a useful example of where to draw the line if employees are improperly proselytising. However, employers should remember that they cannot impose a blanket ban on employees who wish to engage in religious speech in the workplace. It is only when the employees’ actions become improper that the employer can take action. Here, the patients to whom Mrs Kuteh was proselytising were potentially vulnerable, and she was acting in contravention of a lawful management instruction.

Kuteh v Dartford and Gravesham NHS Trust