Employment and Immigration Law Update – Dismissal for proselytising at work

The Court of Appeal has considered whether a NHS Trust had unfairly dismissed a Christian nurse who had repeatedly talked about religion to patients and prayed for them.

Kuteh v Dartford and Gravesham NHS Trust [2019] EWCA Civ 818

Facts

The claimant was a Christian nurse who had been warned not to initiate unwanted religious discussions with patients following several previous complaints. Despite assuring the matron that she would no longer discuss religion with patients, further complaints were received that she had told a patient that she would pray for them, she had preached at a patient and asked a patient to sing a psalm with her. The claimant was suspended and then dismissed for gross misconduct following an investigation and a disciplinary hearing. The claimant brought a claim for unfair dismissal (note, she did not bring a claim for discrimination on the grounds of religion or belief). She claimed in particular that the Nursing and Midwifery Council (NMC) code, which prevents the inappropriate expression of personal beliefs, should be interpreted in a way compatible with her rights under Article 9 (right to freedom of thought, conscience and religion) of the European Convention on Human Rights (EHRC). Her claim for unfair dismissal was rejected by both the employment tribunal and the Employment Appeal Tribunal.

Court of Appeal decision

The Court of Appeal has dismissed the claimant’s appeal. Improper proselytising is not protected by Article 9 of the EHRC, and interference with Article 9 rights can be justified as proportionate to a legitimate aim. The Trust did not have a blanket ban on religious speech in the workplace, but had issued a reasonable instruction to the claimant not to initiate such discussions. The claimant had acted inappropriately by improperly proselytising to patients, contrary to the NMC code, and by failing to follow a lawful management order. The claimant’s dismissal for gross misconduct, following a fair investigation and disciplinary procedure, therefore fell within the band of reasonable responses.

Consequences

It is perhaps surprising, on the face of it, that the claimant in this case did not pursue a claim for discrimination on the grounds of religion or belief. However, it is unlikely that such a claim would have succeeded in view of previous authorities that have established a clear distinction between the manifestation of a religious belief and the inappropriate promotion of that belief in the workplace. This case confirms that the same principle applies in relation to Article 9 rights under the ECHR.

This article is from the June 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. Law covered as at June 2019.

The content of this article is for general information only. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.