Dismissal for discussing religion with patients fair


3 mins

Posted on 20 Jun 2019

A nurse’s dismissal for discussing religion with patients after management told her not to was fair. Although an employee has the right to manifest their religion, including through teaching, this does not extend to inappropriate promotion or proselytising of their beliefs. Employers may dismiss employees who seek to promote their religious beliefs at work but only where the employee acts inappropriately.  An employee will be acting inappropriately if they ignore a reasonable management instruction. 

Nurse ignores management instruction not to discuss religion with patients

Ms Kuteh is a Christian. She worked as a nurse and was responsible for assessing patients about to undergo surgery. The matron raised concerns with her after some patients complained that she had initiated unwanted religious discussions during assessments. The matron told her that it was not appropriate to discuss religious views. Ms Kuteh assured her that she would not discuss religion unless a patient asked her to. 

In the next couple of months, there were further incidents and three more patients complained.  She gave one patient a bible and said she would pray for her. One patient complained she had preached at her and made her feel uncomfortable. The third patient said she told him that the only way to the Lord was through Jesus.  She had then gripped his hand, said a prayer and invited him to sing a psalm with her.

Trust dismisses her for gross misconduct

Following a disciplinary investigation and hearing, the Trust dismissed her for gross misconduct.  This was because she had failed to follow a reasonable management instruction, behaved inappropriately and failed to comply with the Nursing and Midwifery Code. The Code prohibits expressing personal beliefs, including religious beliefs, in an inappropriate way.  

Nurse relies on right to manifest her religion and claims unfair dismissal 

Ms Kuteh claimed her dismissal was unfair. She argued that the Code had to interpreted in a way which was compatible with her right to manifest her religion. This is a right under Article 9 of the European Convention on Human Rights.  

Employment tribunal and Employment Appeal Tribunal rule dismissal fair

The employment tribunal rejected this argument and ruled that her dismissal was fair. Article 9 did not apply. There is a difference between being prevented from manifesting religious beliefs, which is protected by Article 9, and inappropriately proselytising religious beliefs, which is not. Ms Kuteh’s conduct was the latter and so Article 9 did not apply. 

Ms Kuteh appealed to the Employment Appeal Tribunal. It ruled that her appeal had no reasonable prospect of success.  She appealed to the Court of Appeal. 

Court of Appeal agrees dismissal fair

The Court of Appeal ruled that proselytising may be protected by the Article 9 right to manifest your religion. Inappropriate proselytising is not. It went on to rule that it had plainly been open to the employment tribunal to find the dismissal fair. Ms Kuteh had admitted that she had initiated conversations with patients about religion. The matron told her not to do this and she assured the matron she would not. Nevertheless, she continued to do so. The Trust had carried out a fair procedure and dismissal was within the band of reasonable responses open to it.   

Comment

Ms Kuteh did not claim that the Trust had discriminated against her because of her religious beliefs when it dismissed her. However, it is unlikely that she would have succeeded in that claim. An employee claiming direct religious discrimination has to show that their employer treated them less favourably because of their religion. However, the reason the Trust dismissed her was not her religion but her conduct in continuing to proselytise or promote her religion after it had instructed her not to.  

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