Kuteh v Dartford and Gravesham – Nurse’s appeal of decision to dismiss her for “preaching” fails in Court of Appeal

In the case of Kuteh v Dartford and Gravesham NHS Trust [2019] EWCA Civ 818, a case which Redmans previously reported on when it first reached the Employment Tribunal (link to our summary of the decision can be found here),  the Court of Appeal upheld the EAT and the Employment Tribunal’s decision that a nurse was fairly dismissed on allegations that she had engaged in inappropriate discussions with patients regarding religion.

Background facts

Ms Kuteh, a committed Christian, worked for the trust as a nurse. Following a medication error, she received a final formal warning to remain on her file for 24 months and was transferred to work in a pre-operative assessment role. Part of this role involved completing a pro forma document which, among other things, asked the patient’s religion.

Patients began complaining that Ms Kuteh raised religious matters with them that went far beyond just asking what religion they observed (one instance involved telling a patient about to undergo surgery for bowel cancer that he’d have a better chance of survival if he prayed). She was instructed not to do this and agreed to comply. However, she didn’t and, following another two incidents, she was subject to a disciplinary process and summarily dismissed.

She brought an unfair dismissal claim (she made no religious discrimination claim), reliant on the protections under article 9 of the European Convention of Human Rights (right to freedom of thought, conscience and religion). The tribunal found her dismissal fair and the EAT refused permission to appeal. She appealed that refusal.

Court of Appeal decision

Her appeal was dismissed.

Whilst the court recognised that proselytism is protected, it noted the protection didn’t extend to improper proselytism.

The court emphasised that it was ‘important that cases such as this should not become over-elaborate or excessively complicated’. The case was a claim for unfair dismissal pure and simple. The essence of the case was as follows:

• Ms Kuteh accepted that on at least some occasions she initiated conversations with patients about religion.
• She had assured her employer that she would stop doing so.
• Despite that assurance, given in response to a lawful management instruction, she continued to do so.
• Her employer conducted a fair procedure, by way of investigation, at the disciplinary hearing and at the subsequent appeal.
• The decision to dismiss Ms Kuteh for misconduct was one which the tribunal concluded fell within the band of reasonable responses open to the employer.

Even having regard to the importance of the right to freedom of religion, it was, said the Court of Appeal, plainly open to the tribunal to conclude that this dismissal had not been unfair.

Our lawyers’ comments on this case

This is a reminder to employers that if an employee is conducting themselves in a way that is considered to be inappropriate, tackling it head on in line with internal policies will generally mean that any dismissal will be fair. That said, the case also shows that employers should be aware of employees expressing personal opinions on their religious or philosophical beliefs in the workplace. Religion or philosophical belief is a protected characteristic under discrimination law (but was not pleaded in this case) and so employers should be wary when investigating expressions of that religion or belief by the employee.