Employment

Proselytising in the Workplace

Domestic and Strasbourg jurisprudence draws a distinction between proper and improper proselytism of religious beliefs.

In Kuteh v Dartford and Gravesham NHS Trust [2019] EWCA Civ 818, 14 May 2019, the
Court of Appeal has considered the limits of proselytising in the workplace.

The Facts

The Claimant, Ms Kuteh, a committed Christian, worked as nurse in the Intensive Therapy Unit of a
hospital. Part of her job duties were to assess patients due to undertake surgery, using a form which asked
about the patient’s religion. Patients complained that when undertaking the assessments, the Claimant had
initiated discussions about religion with them. The hospital expressed concerns that the Claimant had
been having unwanted religious discussions with patients. Her conduct continued. The Claimant was
suspended from her duties while three allegations against her were being investigated. One of the
allegations was that Claimant had breached the paragraph in the Nursing and Midwifery Council Code
(‘NMC Code’), which required her not to express her personal beliefs to people in an inappropriate way.
A further patient complaint was received during the investigation process. The complaint related to the
Claimant offering the patient her bible and asked him to sing Psalm 23 with her. The patient described
the encounter as ‘very bizarre’ and ‘like a Monty Python skit’. During an investigation meeting, the
Claimant accepted that she would speak to patients about religion. She admitted that she did not follow
reasonable management instructions and that she had given a patient a bible. Following a disciplinary
process, the Claimant was dismissed for gross misconduct. The Claimant brought unfair dismissal
proceedings (making no claim for religious discrimination), but referred to Article 9 European Convention
on Human Rights (‘ECHR’) (freedom to manifest one’s religion and beliefs) in the context of the NMC
Code. The ET dismissed her dismissal claim, and the EAT did not grant her permission to appeal.

The Decision

The Claimant appealed, arguing the EAT had (i) failed to consider the correct interpretation of the relevant
paragraph in the NMC Code and the distinction between appropriate and inappropriate beliefs and (ii)
erred in failing to acknowledge Article 9 was applicable. The Court of Appeal emphasised that improper
proselytism was not protected by Article 9 ECHR (which, in any event, was not a directly enforceable right

in the Employment Tribunal). The Court stressed that cases like Ms Kuteh’s should ‘not become over-
elaborate and excessively complicated’ [para. 67]. The Court noted that: the Claimant’s admissions during

the investigatory process; her conduct had not changed; the hospital had conducted a fair procedure; and
the decision to dismiss fell within the band of reasonable responses. It had plainly been open to the ET
to conclude that, even having regard to the importance of the right to freedom of religion, the dismissal
had not been unfair, and the EAT was correct to hold that the appeal had no reasonable prospect of
success.

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