Everyone has a human right to manifest their religion. However, the Court of Appeal has ruled in a guideline case that the summary dismissal of a nurse who persisted in discussing her faith with worried patients was a reasonable response by her NHS trust employer (Kuteh v Dartford and Gravesham NHS Trust).
A number of patients who were assessed by her prior to undergoing surgery complained that the nurse, a committed Christian, had inappropriately sought to discuss religious matters with them. She was, amongst other things, said to have asked one patient what she thought Easter was about and to have informed a cancer sufferer that he would have a better chance of survival if he “prayed to God”.
Her attempts to enter into religious discussions with patients continued after she gave an assurance to a matron that she would desist. Following a disciplinary hearing, she was found to have disobeyed a reasonable management instruction. She had shown no signs of changing her behaviour and had breached the Nursing and Midwifery Council Code, which urges nurses not to discuss their personal beliefs with patients in an inappropriate manner.
Her employment was terminated for gross misconduct and her internal appeal against that decision was rejected. Her complaint of unfair dismissal suffered the same fate following a hearing before an Employment Tribunal and her challenge to that outcome was subsequently dismissed by the Employment Appeal Tribunal (EAT).
In challenging the EAT's decision, the nurse argued that a fact-sensitive distinction should have been drawn between improper proselytising and true evangelism, and that she had only engaged in the latter. She was required to ask patients about their religion as part of the pre-operative assessment process. Her expression of her beliefs had not been inappropriate and insufficient account had been taken of her right to manifest her religion, enshrined in Article 9 of the European Convention on Human Rights.
In dismissing her appeal, however, the Court noted that the trust did not have a blanket ban on religious speech in the workplace and that the nurse had made no formal complaint of religious discrimination. What the trust considered to be inappropriate, was her continued initiation of religious discussions in disobedience of a lawful managerial instruction. In the circumstances, her dismissal was a reasonable response open and available to the trust.
Contact Emma-Louise Hewitt on 0808 166 8860 or email e.hewitt@sydneymitchell.co.uk for advice on employment matters.
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