In the recent case of Kuteh v Dartford & Gravesham NHS Trust the Court of Appeal considered whether a nurse was dismissed unfairly after she failed to follow instructions from her employer to cease promoting Christianity among her patients.
Ms. Kuteh began working for the Trust in 2007. In November 2015, she began to carry out pre-assessments on patients who were undergoing surgery. She used a checklist that included questions about a patient’s religion.
Between March and April 2016 the Trust received complaints from five patients that Ms. Kuteh had discussed religion with them in an inappropriate manner. The complaints included accusations of ‘preaching’. One patient stated that Ms. Kuteh had told them they should pray to improve their chances of survival, while another stated that she had given them a bible.
On 11 April 2016, Ms. Kuteh was formally asked to stop discussing religion with patients and she agreed to this. However, the Trust received three further complaints between May and June. A formal investigation took place during which Ms. Kuteh stated that she had felt the instruction was unreasonable, though she did accept that some patients may find it inappropriate. She did not deny that she had undertaken religious conversations with patients but argued that she was not always the one to initiate them. She admitted that she would ask “why not” if a patient answered that they were not religious.
A full disciplinary hearing took place in August and Ms. Kuteh was dismissed for: failing to follow the formal instruction; inappropriate conduct; and breaching the nursing code which forbids the inappropriate expression of religious views.
Ms. Kuteh brought a claim for Unfair Dismissal in the Employment Tribunal. As part of the claim, she submitted that the conversations were protected under Article 9 of the European Convention on Human Rights; the right to freedom of thought, conscience and religious belief. She did not allege religious discrimination.
The Employment Tribunal held that the dismissal had been fair. The Tribunal agreed with the Trust that the checklist had required Ms. Kuteh to make a simple enquiry and to note the response; it ‘did not open the door to a religious discussion’.
On the Claimant’s right to freedom of religious expression, the Tribunal cited the case of Chondol v Liverpool City Council, which drew a distinction between the manifestation of religious belief and the inappropriate proselytization thereof. This distinction was stated in Kokkinakis v Greece as the difference between “true evangelism” and “a corruption or deformation of [evangelism].” The Tribunal and subsequently the Court of Appeal were satisfied that the ‘true reason’ behind the dismissal was the in-appropriateness of Ms. Kuteh’s religious discussions.
This case highlights the fine balance that exists where an employee ‘evangelises’ in the workplace. There is some reassurance for employers that a dismissal will not be unfair simply because of its association with religious belief. It will be vital to conduct any investigation and disciplinary process thoroughly, to ensure that the relevant conduct goes beyond the manifestation of belief and can properly be said to be inappropriate. The authorities support the notion that continuing to proselytize after being asked to stop, is unlikely to be protected as religious expression.