07 Nov 2019
The Court of Appeal has ruled that a Nurse was fairly dismissed on allegations she’d engaged in inappropriate discussions with patients about religion.
If you want a quick summary of the case and the main takeaway points, you can skip ahead to our Too Long; Didn’t Read section here.
Kuteh v Dartford and Gravesham NHS Trust
Article 9 of the European Convention on Human Rights (ECHR) provides that everyone has the right to freedom of religion and to manifest this religion.
It also explains that this should only be subjected to limitations if in the interests of public safety or protection of public order, health, morals or the rights and freedoms or others.
Background to the case
This case concerned a nurse who worked in a pre-operative assessment role. She was a committed Christian and often took the opportunity to talk to patients about her religion.
She asked a patient ‘what they thought Easter meant’. She informed another patient that they’d have a better chance of surviving cancer surgery if they prayed.
Patients and staff raised complaints against her. As a result, the ward matron spoke to the nurse about the inappropriateness of her actions.
The nurse agreed not to speak about religion to patients anymore unless they asked her to. However, two further complaints were made, stating that the nurse was continuing to preach and was making patients feel uncomfortable.
In response, the nurse was invited to an investigation meeting. She admitted sometimes initiating discussions about religion.
She argued that she believed this was a permissible part of the pre-operation process. But, she did agree that she’d not followed reasonable management instructions.
A disciplinary hearing was later held and a decision was made to dismiss the Nurse on three grounds:
- She’d failed to follow a reasonable management instruction
- She’d acted inappropriately in discussing the topic of religion with patients
- As a result of the first two grounds, she’d breached the Nursing and Midwifery Council (NMC) Code in expressing her personal beliefs inappropriately.
Her appeal against this decision was heard by the Director of Nursing of Quality, who dismissed it.
She later brought a claim to the employment tribunal (ET) for unfair dismissal.
The main argument was that the Nursing and Midwifery Code must be interpreted in a way that’s compatible with Article 9 of the ECHR – ie, her freedom to manifest her religion.
What did the employment tribunal say?
The ET dismissed her claim.
They outlined that the nurse was aware her conduct was inappropriate. She’d also recognised that the actions of the Trust were fair and reasonable.
The tribunal outlined that there was a difference between proselytising beliefs (attempting to convert someone) and simply manifesting them.
The nurse appealed this decision to the Employment Appeal Tribunal (EAT). The EAT refused to hear the appeal, finding it had no reasonable grounds for success.
In response, the nurse appealed against this refusal to the Court of Appeal. She argued that the EAT had failed to distinguish between true evangelism (the spreading of Christian gospel by public preaching) and improper proselytism.
What did the Court of Appeal say?
The Court of Appeal unanimously dismissed her appeal. They found that the nurse had acted inappropriately by proselytising to patients. And, she failed to follow a lawful management order not to do this.
The Court outlined that the Trust had not imposed a blanket ban on religious speech and had conducted a fair procedure throughout her dismissal.
The decision to dismiss her had therefore fallen within the band of reasonable responses open to them.
This case seems to confirm that organisations can lawfully draw a line between the manifestation of a belief and the way in which the employee manifests it.
However, this distinction can be difficult to draw.
Be wary of employees expressing personal opinions on their religious or philosophical beliefs in the workplace and the potential issues that can arise.
Be mindful that religion or philosophical belief is a protected characteristic under discrimination law. An investigation into expressions of religion and belief should therefore always be approached consistently to avoid any preferential treatment.
A nurse repeatedly spoke to patients about her religious beliefs, in some cases, offering opinions on how faith may impact their medical condition. Numerous complaints were raised by employees and staff. The nurse had a meeting with the ward matron and agreed not to initiate any more conversations about her beliefs with patients. Despite this, two more complaints were made. She was taken through a disciplinary process and then dismissed.
The nurse took her employer to tribunal where they found her conduct was inappropriate and her employer’s actions had been fair. They noted the difference between preaching and manifesting a belief. The nurse tried to appeal the decision, but the EAT refused to hear the appeal. The nurse then went to the Court of Appeal—they also dismissed her appeal.
As an employer, you can draw a line when an employee’s belief manifests in a way that causes issues for colleagues, customers, or those under the employee’s care. But as a belief is a protected characteristic, approach each instance consistently to avoid discrimination.
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