18 July 2019 | Comment | Article by Rhiannon Dale
The Court of Appeal has held that it was not unfair for an NHS Trust to dismiss a Christian employee for proselytising to patients following a management instruction not to do so.
Several patients had made complaints that Mrs Kuteh had initiated unwanted religious discussions with them during their assessments.
The Trust spoke to Mrs Kuteh who made assurances that this would not happen again.
However, a series of further incidents of a similar nature occurred including complaints that the nurse had given a patient a bible, had told them she would pray for them, had "preached" and had behaved "bizarrely" by gripping another patient's hand, saying an intense prayer and asking the patient to sing a psalm with her. This latter incident was described by the patient as akin to a "Monty Python skit".
Mrs Kuteh was dismissed for gross misconduct for failing to follow a reasonable management instruction (not to discuss religion with patients unless asked) and for behaving inappropriately by having unwanted discussions with patients about religion that had resulted in complaints. She was also found to have acted in breach of the Nursing and Midwifery Council Code in relation to making sure that she did not express her personal beliefs (including political, religious or moral beliefs) to people in an inappropriate way.
Mrs Kuteh brought a claim for unfair dismissal in the Employment Tribunal although interestingly she did not bring a claim for discrimination on the grounds of religion or belief under the Equality Act 2010.
The claim was unsuccessful in the Employment Tribunal and also in the Employment Appeal Tribunal. The Court of Appeal has now also dismissed Mrs Kuteh’s claim for unfair dismissal. The Court found that the Trust had conducted a fair investigation and disciplinary procedure. Furthermore, it was perfectly acceptable for the tribunal to have concluded that the decision to dismiss Mrs Kuteh for misconduct fell within the band of reasonable responses available to the Trust. Mrs Kuteh had accepted that she had initiated conversations with patients about religion despite her assurances that she would not do so and had therefore acted in contravention of a lawful management instruction.
The Court of Appeal also considered the argument by Mrs Kuteh that the NMC Code had to be interpreted in a way compatible with Article 9 of the ECHR which protects an individual’s freedom to manifest their religion or belief. This argument was rejected on the basis that improper proselytism (which is what Mrs Kuteh had been doing) was not protected by Article 9. The distinction must, therefore, be made between the manifestation of a religious belief and the inappropriate promotion of that belief.
Finally, although Mrs Kuteh had not brought a claim for discrimination on the grounds of religion or belief, it is likely that such a claim would have been unsuccessful in any event based on previous authorities where employees have disobeyed management instructions and continue to proselytise at work.
Kuteh v Dartford and Gravesham NHS Trust  EWCA Civ 818