Court of Appeal rules that dismissal to due a breach of a lawful management instruction was a fair outcome
Mrs Kuteh worked in the intensive therapy at an NHS Trust. In her role, Mrs Kuteh was responsible for carrying out assessments of patients who were due to undergo surgery. As part of her role she was required to make “a simply enquiry as to the patient’s religion” and note the response on a form.
In 2016, several patients complained that Mrs Kuteh had initiated unwanted religious conversations with them during this process. Noting this the trust spoke with the complainant and expressed their concern. She was informed that she had offended several patients and that it was not appropriate to discuss religious views with them during assessments. The trust was assured by Mrs Kuteh that she would not discuss this with patients going forward.
Following previous discussions with management further complaints where received suggesting that the complainant was “preaching” to patients and as such she was suspended pending disciplinary proceedings, which subsequently led to her dismissal for gross misconduct.
Mrs Kuteh appealed the decision but was unsuccessful and as such brought a claim to the ET for unfair dismissal. She claimed that the Nursing and Midwifery Council code (NMC code) must be interpreted in a way that is compatible with her right to freedom of thought, conscience and her religion.
At tribunal it was found that there was clear and ample evidence that Mrs Kuteh’s conduct had been inappropriate as the form she was required to use did need to her go into a religious discussion. On review of the investigation and disciplinary it was deemed fair and reasonable in the circumstances and concluded that the sanction of dismissal was within the band of reasonable responses. In particular given that further incidents occurred following Mrs Kuteh assuring the trust that she would not repeat such behaviour.
After an unsuccessful appeal to the Employment Appeal Tribunal, Mrs Kuteh appealed to the Court of Appeal. Her claim was for unfair dismissal, not discrimination on the ground of religion and the Court rejected Mrs Kuteh’s argument that her case raised an important question on the correct approach to the manifestation of religion in the workplace.
The Court explained that Mrs Kuteh’s case was not about religious speech at the workplace, but about her inappropriate behaviour and discussions about religion which she had previously been addressed by management.
This case reminds employers of the importance of not placing an individual at a disadvantage for holding religious beliefs in the workplace however it does demonstrate that employers are correct to address such matters as proselytising the beliefs with fair and effective disciplinary procedures.
It highlights the importance of employers having effective policies and procedures in place employees know what acceptable behaviour in the workplace is and can be address accordingly if necessary.
Kuteh v Dartford and Gravesham NHS Trust [2019] EWCA Civ 818 CA