The Court of Appeal has dismissed an appeal for wrongful dismissal by a nursing sister who was sacked for breaching an undertaking not to have inappropriate religious discussions with patients.

Background

 In Kuteh v Dartford and Gravesham NHS Trust [2019] EWCA Civ 818, the Claimant was a nursing sister employed by the Trust. She was a “committed Christian”; and in March and April 2016, staff in her department told her superiors that patients had been complaining that when they were being assessed by Mrs Kuteh she had been raising matters of religion and faith with them. One patient complained that she had been asked “what she thought Easter was about”, another that he had been asked what he thought being a Christian meant and a third, about to undergo major surgery for bowel cancer, that she had told him that if he prayed to God he would have a better chance of survival. In the end, she was dismissed: she lost her claim in the Employment Tribunal and, in an unreported judgment, the Employment Appeal Tribunal held that the grounds for an appeal to it were unarguable and dismissed her appeal from the ET’s decision[1]. [For the detailed background, see Mrs S Kuteh v Dartford and Gravesham NHS Trust (England and Wales: Unfair Dismissal) [2017] UKET 2302764/2016.]

The appeal

Mrs Kuteh was subsequently given leave to appeal by Bean LJ on two grounds only:

• Ground 1: that the EAT had failed to consider the correct interpretation of para. 20.7 of the Nursing and Midwifery Council (NMC) Code and the distinction between appropriate and inappropriate expressions of religious beliefs.
• Ground 2: that EAT had erred in failing to acknowledge that Article 9 ECHR was applicable and to consider the fact-sensitive distinction between true evangelism and improper proselytism, and to carry out a proper analysis under Article 9(2) [37].

For Mrs Kuteh, it was argued under Ground 1 that, in order to act reasonably, an employer in these circumstances had to consider the principled distinction between inappropriate and appropriate expressions of religious belief in a clinical setting and to investigate the facts on that basis. That distinction was warranted by the wording used in the GMC guidance documents Good Medical Practice (para. 54), and Personal Beliefs and medical practice (paras. 29-31) – but the Trust had failed to do so and had failed to recognise Mrs Kuteh’s genuine attempts to comfort patients [38]. UnderGround 2, it was submitted that the ET’s reliance on Chondol had been misconceived because the dismissal of the employee in Chondolwas justified only on grounds unrelated to religion and Chondolwas about religious discrimination rather than Article 9 rights. Counsel submitted that Article 9(1) plainly did protect proselytism and though a limitation on that right, as imposed by paragraph 20.7 of the NMC Code, might well be legitimate, the Article 9(2) exception would only be made where the facts showed that the proselytising had been improper[39].

For the Trust, it was argued that the ET had not erred when it did not analyse the meaning of “inappropriate” because it was obvious that Mrs Kuteh’s conduct had been inappropriate. It did not matter that the NMC Code permitted “appropriate” religious discussions because she had been given a direct management instruction not to initiate religious discussions with patients – which (as she herself accepted) she had disobeyed In any event, under that Code and all other guidance documents cited on her behalf, her conduct would plainly be considered to be inappropriate [41]. As to Ground 2, the claim before the ET was one of unfair dismissal and it had no jurisdiction to hear a free-standing claim that a Convention right had been breached. The ET had correctly found that the Trust was entitled to treat Mrs Kuteh’s conduct as “improper proselytising” and, therefore, an improper manner of manifestation of religious belief [42].

The judgment

Kokkinakis v Greece [1993] ECHR 20 was cited in support of Mrs Kuteh’s appeal; however, the view of Singh LJ was that the ECtHR had found in Kokkinakis, on the particular facts of the case, that it had not been demonstrated that the means used by the Applicant were improper and, because of that, that there had been a breach of Article 9 [52]. Further:

“In my view, it is clear from the decision in Kokkinakis that proselytism as such can fall within the rights protected by Article 9(1). However, it is also clear that improper proselytism is not protected by Article 9” [53: emphasis in original].

The claim had at all material times been one of unfair dismissal: there had been no claim of discrimination on grounds of religion, nor had it been a claim directly for breach of the Human Rights Act 1998 [65]. Though Counsel had submitted that “There is, simply, no authority for Ms Kuteh’s employers to have a blanket ban on religious speech” [emphasis in original]:

“That is not what the present case is about. The Respondent employer did not have a blanket ban on religious speech at the workplace. What was considered to be inappropriate was for the Claimant to initiate discussions about religion and for her to disobey a lawful instruction given to her by management “[66].

It was also important that such cases should not become over-elaborate or excessively complicated [67]. In short:

• Mrs Kuteh accepted that on at least some occasions she had initiated conversations with patients about religion; and
• in April 2016 she had given an assurance that she would not do so; but
• despite that assurance, given in response to a lawful management instruction, she had continued to do so [68].

The procedures of the investigation, the disciplinary hearing and the subsequent appeal had been fair. The ET had concluded that the decision to dismiss Mrs Kuteh fell within the band of reasonable responses open to the Trust in this case [68] and, “Even having regard to the importance of the right to freedom of religion, it was plainly open to the ET to conclude that this dismissal had not been unfair” [69]. Similarly, the EAT had been correct to regard the appeal as having no reasonable prospect of success and therefore to dismiss it [70].

Appeal dismissed [71].