An employee was automatically unfairly dismissed because of his union activities even though...
Dismissal for proselytising religious views was fair
Kuteh v Dartford and Gravesham NHS Trust
The dismissal of a nurse who gave a patient a Bible and proselytised (tried to convert people to another religion) her religious views was fair and did not breach European law.
Ms Kuteh, a committed Christian, worked for the trust as a nurse. Following a medication error, she received a final formal warning to remain on her file for 24 months and was transferred to work in a pre-operative assessment role. Part of this role involved completing a pro forma document which, among other things, asked the patient’s religion. Patients began complaining that Ms Kuteh raised religious matters with them that went far beyond just asking what religion they observed (one instance involved telling a patient about to undergo surgery for bowel cancer that he’d have a better chance of survival if he prayed). She was instructed not to do this and agreed to comply. However, she didn’t and, following another two incidents, she was subject to a disciplinary process and summarily dismissed.
She brought an unfair dismissal claim (she made no religious discrimination claim), reliant on the protections under article 9 of the European Convention of Human Rights (right to freedom of thought, conscience and religion). The tribunal found her dismissal fair and the EAT refused permission to appeal. She appealed that refusal.
Court of Appeal decision
Her appeal was dismissed.
Whilst the court recognised that proselytism is protected, it noted the protection didn’t extend to improper proselytism.
The court emphasised that it was ‘important that cases such as this should not become over-elaborate or excessively complicated’. The case was a claim for unfair dismissal pure and simple. The essence of the case was as follows:
- Ms Kuteh accepted that on at least some occasions she initiated conversations with patients about religion.
- She had assured her employer that she would stop doing so.
- Despite that assurance, given in response to a lawful management instruction, she continued to do so.
- Her employer conducted a fair procedure, by way of investigation, at the disciplinary hearing and at the subsequent appeal.
- The decision to dismiss Ms Kuteh for misconduct was one which the tribunal concluded fell within the band of reasonable responses open to the employer.
Even having regard to the importance of the right to freedom of religion, it was, said the Court of Appeal, plainly open to the tribunal to conclude that this dismissal had not been unfair.
Link to judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2019/818.html
This is a reminder to employers that if an employee is conducting themselves in a way that is considered to be inappropriate, tackling it head on in line with internal policies will generally mean that any dismissal will be fair.