Was it unfair to dismiss a Christian employee for proselytising to patients?
In Kuteh v. Dartford and Gravesham NHS Trust the Court of Appeal was asked to consider whether the dismissal of an employee who continued to initiate discussions with patients about religion after being given a lawful management instruction to stop doing so was unfair.
Mrs Kuteh was a Christian nurse responsible for assessing patients before surgery. Several patients had complained that Mrs Kuteh had started unwanted religious conversations with them. After clear instructions from the Trust to stop such conversations, Mrs Kuteh had assured management that she would not discuss religion with patients again unless a patient asked her to do so. There were, however, further incidents including one in which Mrs Kuteh had apparently gripped a patient’s hand, said an “intense” prayer and asked the patient to sing a psalm with her. As a result, Mrs Kuteh was suspended and ultimately dismissed on grounds of gross misconduct.
Mrs Kuteh brought an unfair dismissal in the employment tribunal and was unsuccessful. After being dismissed by the Employment Appeal Tribunal, Mrs Kuteh’s case went up to the Court of Appeal which dismissed her appeal.
Previous UK and ECJ case law had established that there was a distinction between manifesting one’s religious beliefs and improperly proselytising them. The Court of Appeal found that Mrs Kuteh had done the latter.
The Trust’s dismissal of Mrs Kuteh was therefore deemed fair. The Trust did not have a ban on religious speech and had only considered it inappropriate for Mrs Kuteh to initiate discussions about religion and asked her to obey a lawful management instruction not to do so. Also, the further incidents had occurred only shortly after the instruction had been given and Mrs Kuteh’s assurance that she would not repeat them.
It is noteworthy that no claim of religious discrimination was made in this case. However, it would be unlikely that the outcome would have differed given the established case law which makes it clear that an employee will not succeed in a discrimination claim where they have been instructed to stop proselytising during their employment but continue to do so.
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Justin Terry is an employment managing associate
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