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“Proselytise” (vb): (1) to advocate, persuade, cause to adopt; (2) to take material risks with your continued employment (UK)

Here is another case about how far doing your God’s bidding in the workplace protects you from disciplinary action by your employer or, put more prosaically, about the relationship between the unfair dismissal regime and your rights to freedom of religion under Article 9 of the European Convention on Human Rights.

Ms Kuteh worked as a nurse for Dartford and Gravesham NHS Trust. As a committed Christian she regularly took the opportunity presented by her work to talk to, or in some cases at, her patients about religion, specifically her religion and why they should share it. One was told immediately prior to his major bowel cancer surgery that if he prayed to God he would have a better chance of survival, while another, not unreasonably expecting the pre-operative assessment scheduled, found herself tackled instead on the true meaning of Easter.

Complaints were made by patients and on 11 April 2016, Kuteh was told (and agreed) that she must not again “engage on the topic of religion unless a patient asked”.

Kuteh contained herself for a full 5 weeks before the complaints re-started. One patient was given a Bible and assured that she would be prayed for. There was an allegation of preaching and then on 3 June Kuteh told a patient that the only way to the Lord was through Jesus. She had then “gripped his hand tightly, said a prayer that was very intense….and asked him to sing Psalm 23”. It was like something out of Monty Python, said the greatly disconcerted patient.

Kuteh was suspended and after careful consideration and what the Employment Tribunal found to be a fair procedure, sacked. The Trust felt her conduct to be a breach both of its reasonable management request in April and of provisions in the Nursing and Midwifery Council (NMC) Code prohibiting the expression of personal beliefs (including religious beliefs) in an inappropriate way.

For reasons not clear from the Court of Appeal’s judgement, Kuteh claimed unfair dismissal only and not the seemingly bigger target of religious discrimination (see later). She based her action and EAT appeal upon the Trust’s alleged failure to pay sufficient heed to Article 9 ECHR. This gives the right to manifest one’s religious beliefs, subject only (Article 9(2)) to such limitations as are necessary for, among other things, the protection of the rights and freedoms of others. According to Kuteh and 1994’s outstandingly dubious European Court decision in Kokkinakis, manifestation of belief includes “in principle the right to try to convince one’s neighbour, for example through teaching…..”. Both the Trust’s instructions and the NMC Code had to be read subject to that, said Kuteh, and the Trust’s failure to do this meant that her dismissal was unfair. Both the Tribunal and the EAT found against her.

The Court of Appeal also gave this argument very short shrift. Kokkinakis had drawn a clear distinction between evangelism and improper proselytism, describing the latter as not compatible with respect for freedom of thought, conscience and religion of others. The Court had no hesitation in finding improper proselytism in Kuteh’s case. Whatever her intentions, the facts remained that the NMC Code forbade her to do what she had done, her employer had told her not to do it, she had agreed both that she should not have done it and would not do it again, the patients clearly did not appreciate it, and so on, but she did it again anyway. Therefore her unfair dismissal claim remained dismissed.

But what if Kuteh had claimed religious discrimination? Yes, she was dismissed for actions driven solely by her strength of religious conviction, but those acts fell outside the protections of Article 9. Another employer choosing for some non-religious purpose to ride equally roughshod over the NMC Code, the instructions of her employer and the objections of her patients would inevitably have been dismissed too. So no direct discrimination and if the prohibition on preaching to patients were a provision, criteria or practice of the Trust for indirect discrimination purposes, it is impossible to conclude that it would not have been found justified, so no joy there either.

So we come back to the basic proposition that misconduct committed on religious grounds and with the most worthy of intentions is still misconduct, and that accommodating the manifestation of religious beliefs does not require the employer to allow one employee to impose him/herself on the views of the others.

© Copyright 2019 Squire Patton Boggs (US) LLP

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David Whincup Employment Attorney Squire Patton Boggs Law Firm
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Following ten years at a Magic Circle firm, David has been Head of our London Employment practice since 1994. His expertise gained from twenty-five years as a specialist Employment Law practitioner covers a wide variety of employment-related issues, including in particular individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding...

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