Unfair dismissal: Improper proselytising cause for fair dismissal
In Kuteh v Dartford and Gravesham NHS Trust  EWCA Civ 818, the Claimant was a nurse who assessed patients pre-operations. She used these meetings to discuss her religion with patients including saying prayers and asking patients to sing psalms with her, which resulted in complaints being filed. The matron told the Claimant it was not appropriate and the Claimant assured her she would stop. She did not stop and so disciplinary proceedings were brought, resulting in the Claimant’s dismissal for gross misconduct. She claimed unfair dismissal at the tribunal and made a passing reference to Article 9 of the European Convention on Human Rights ("ECHR") in the context of the Nursing and Midwifery Council’s Code (e.g. to uphold the reputation of your profession at all times, to achieve this you must not express your personal beliefs (including religious) to people in an inappropriate way). The Claimant submitted that this code must be interpreted in a way that is compatible with the her rights under Article 9 ECHR (freedom of religion and to manifest that religion).
The tribunal dismissed the claim, and rejected her Article 9 claim: she was dismissed for the potentially fair reason of her conduct (it had been unreasonable), the investigation and hearing had been fair and reasonable. She requested permission to appeal, but this was denied. She appealed that refusal, complaining that the tribunal had failed to distinguish between true evangelism and improper proselytism in considering the impact of the right under Article 9 ECHR to manifest her religion on the fairness of the dismissal.
The Court of Appeal dismissed this appeal. In its view, the Claimant had acted inappropriately both by improperly proselytising to patients and by failing to follow a lawful management order. This was only an unfair dismissal claim, there was no claim of discrimination on grounds of religion, nor was this a claim directly for breach of the Human Rights Act. Given that the disciplinary process was fairly carried out and the conclusion reached was reasonable, the appeal was dismissed – she had been fairly dismissed.
Published: 16 May 2019
Article Sections: Ending employment