Not if the proselytising is improper, held the Court of Appeal in Kuteh v Dartford and Gravesham NHS Trust [2019].
Kuteh v Dartford and Gravesham
Case background
In order for a dismissal to be fair, it must fall within one of the five categories of potentially fair reasons in the Employment Rights Act 1996 and a fair process must have been followed prior to taking the decision to dismiss. The Tribunal will also consider whether, taking into account all of the circumstances, the employer acted reasonably in treating the given reason(s) for dismissal as sufficient to justify dismissing the employee.
Religion or belief is a protected characteristic under the Equality Act 2010, and therefore employees will be protected against suffering discrimination in employment on the grounds of their religion or belief (or lack of religion). Article 9 of the European Convention on Human Rights also provides for everyone having the right to freedom of thought, conscience and religion. This right includes freedom to manifest that religion or belief in worship, teaching, practice and observance.
Some individuals may see it as their religious duty to promote and spread their faith through proselytising. Whilst such individuals may argue that they are perfectly entitled to do so under Article 9, it is important to note that it has been established in case law that there is a difference between an individual’s right to manifest their religious beliefs and the inappropriate promotion or proselytising of those beliefs.
Facts of the Case
The Claimant was a Christian nurse. During her assessments with patients, she was required to ask patients about their religion. However, several patients made complaints that she had gone further than simply asking them about their religion and initiated unwanted religious discussions with them during assessments, leading the matron to speak to the Claimant about her concerns.
The Claimant assured the matron she would no longer initiate conversations with patients about religion unless asked to do so, however she later breached this assurance and patients raised further complaints that she had preached at them, given them a Bible, prayed for them in their presence and asked them to sign a psalm with her.
The Claimant was suspended and disciplinary proceedings were brought against her. Following an investigation and disciplinary hearing, she was dismissed for gross misconduct on the grounds that she had:
- Failed to follow a reasonable management instruction to not discuss religion with patients;
- Behaved inappropriately by having unwanted discussions with patients about religion; and
- Breached the Nursing and Midwifery Council Code by expressing her personal beliefs in an inappropriate manner.
Decision
The Claimant brought a claim for unfair dismissal.
The Employment Tribunal found the dismissal fair, ruling that her conduct amounted to inappropriate proselytization of her beliefs and therefore did not fall within the remit of Article 9.
The Claimant appealed this decision on the grounds that the tribunal had failed to distinguish between true evangelism and improper proselytism when ruling that Article 9 was not applicable.
The Court of Appeal dismissed the appeal. It considered that the Claimant had acted inappropriately both by improperly proselytising to patients and by failing to follow a lawful management order. Given that a fair disciplinary process had been carried out and the conclusion reached fell within the band of reasonable responses, the fairness of the dismissal was upheld.
Comment
It is worth noting that Mrs Kuteh did not bring a claim for discrimination in this case. However, this claim would have been unlikely to succeed on the basis that the Courts have been clear in previous cases that an employee will not succeed in a claim for either direct or indirect religious discrimination where they have been instructed to stop proselytising but continue to do so.
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