Background

Employers are usually advised to exercise extreme caution where an employee's religion or beliefs are a factor in their own disciplinary process. Article 9 of the European Convention on Human Rights (ECHR) provides everyone the right to freedom of thought, conscience and religion (with this right including the freedom to manifest that religion or belief, in worship, teaching, practice and observance), while religion or belief is a protected characteristic under the Equality Act 2010. However, in its judgment in the recent case of Kuteh v. Dartford and Gravesham NHS Trust the Court of Appeal has shown that it is possible to fairly dismiss an employee for inappropriately proselytising in the work place.

Facts of the case

Ms Kuteh was a Christian nurse whose role involved assessing patients due to undergo surgery, and the checklist she needed to follow required her to ask a simple question regarding her patients' religious beliefs.

Various patients had complained that Ms Kuteh had started unwanted religious conversations with them during their pre-op assessment. Following a string of complaints, the matron raised the issue with Ms Kuteh and was given assurance that she would not discuss religion with her patients again unless invited to.

However, soon after this initial warning further incidents were reported. One patient complained when Ms Kuteh gave them a Bible and said she would pray for them. Another patient described his encounter with Ms Kuteh as being like a "Monty Python skit" in which Ms Kuteh gripped his hand tightly, told him that the only way he could get to the Lord was through Jesus and invited him to sing Psalm 23. 

Ms Kuteh was suspended while the Trust conducted an investigation. At the subsequent disciplinary hearing Ms Kuteh was dismissed for gross misconduct on the grounds that she had: 

• failed to follow a reasonable management instruction to cease discussing religion with patients;
• behaved inappropriately by having unwanted discussions with patients about religion; and 
• acted in breach of paragraph 20.7 of the Nursing and Midwifery Council (NMC) Code in relation to not expressing personal beliefs (including political, religious or moral) in an inappropriate way.

Ms Kuteh appealed her dismissal, but the decision was upheld. Ms Kuteh then brought a claim for unfair dismissal to the Employment Tribunal. 

The decision

The Employment Tribunal found that Ms Kuteh had been dismissed for the potentially fair reason of her conduct and that the investigation conducted by the Trust had been both fair and reasonable. 

Ms Kuteh 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 ECHR. This argument was rejected, as a distinction could be drawn between Ms Kuteh being dismissed for proselytising her beliefs, as opposed to being prevented from manifesting them. 

An appeal to the Employment Appeal Tribunal (EAT) followed, but was dismissed on the grounds that it had no reasonable prospects of success.

Ms Kuteh then took her case to the Court of Appeal on the grounds that:

• the EAT 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; and 
• the EAT had erred in failing to acknowledge that Article 9 was applicable and to consider the fact-sensitive distinction between true evangelism and improper proselytism.

Judge Singh, in his judgment, held that Article 9 cannot be directly enforced in the Employment Tribunals because claims for breach of ECHR rights do not fall within their statutory jurisdiction. However, domestic law must be read to be consistent with the ECHR so far as possible. He went on to state that it was clear from previous case law that proselytising could fall within the rights protected by Article 9. However, it was also clear that improper proselytism was not protected by Article 9. 

Judge Singh also noted that it was significant that Ms Kuteh had been informed that her behaviour was inappropriate and had given assurances that it would not happen again, only to disobey these instructions and continue to engage in conversations about religion in what was a clear case of misconduct. 

Comment

This case brings the controversial issue of religion in the workplace to the fore once again. Given the facts of the case it is notable that Ms Kuteh did not bring a claim for religious discrimination under the Equality Act. However, given the courts' findings, it seems unlikely that it would have made a difference had she done so. The findings show that an employer may fairly dismiss an employee where their actions are deemed inappropriate even when motivated by their religious beliefs. Provided that there is a potentially fair reason (in this case the misconduct of the employee in disobeying a clear instruction from her employer), a decision to dismiss may ultimately be a fair one.

This case also highlights the importance of ensuring that a company's disciplinary procedures are well documented and actually followed, throughout the investigatory, disciplinary and, if necessary, appeal stage.