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Employee Don’t Preach

In Kuteh v Dartford and Gravesham NHS Trust [2019], the Court of Appeal held that it was not unfair for an NHS Trust to dismiss a Christian employee for proselytising to patients following a management instruction not to do so.

The Claimant was a nurse, working in a pre-operative assessment role. During assessments, she often took the opportunity to talk to patients about religion. Complaints were made about this by patients, leading the matron to speak to the Claimant about the inappropriateness of her actions. She assured the matron she would no longer initiate conversations with patients about religion but then breached that assurance, on three occasions including by saying prayers for patients and asking a patient to sing a psalm with her. Disciplinary proceedings were brought and the Claimant was dismissed.

The employment tribunal found the dismissal fair and the EAT refused permission to appeal. On appeal against that refusal, the Claimant complained that the tribunal had failed to distinguish between true evangelism and improper proselytising in considering the impact of the right under Article 9 of the European Convention of Human Rights to manifest religion on the fairness of the dismissal.

The Court of Appeal dismissed the appeal. The Court considered that the Claimant had acted inappropriately both by improperly proselytising to patients and by failing to follow a lawful management order. In coming to their decision the Court applied the distinction raised in Chondol v Liverpool City Council [2009] where it was found that there was a difference between an individual's right to manifest their religious beliefs and the inappropriate promotion or proselytising of those beliefs.

Thus, the Court found that the principle in Chondol could be applied to cases concerning the right to manifest a religion or belief under Article 9 of the European Convention on Human Rights. Given that the disciplinary process was fairly carried out and the conclusion reached was reasonable, the appeal was dismissed and the fairness of the dismissal was upheld.

This bulletin is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon, as legal advice.

JMW Solicitors is a Limited Liability Partnership.