Co-authored by Rachael Brenchley, Trainee, Employment Team
Religious beliefs are a protected characteristic for the purpose of the Equality Act 2010 so a prudent employer should be cautious about disciplining an employee where the employee’s religion or beliefs are relevant to the issues. However, the Court of Appeal has recently decided in Kuteh v Dartford and Gravesham NHS Trust that an employee who initiates inappropriate conversations about religion at their workplace can be fairly dismissed, provided that a fair disciplinary procedure is followed.
Facts of the case
Mrs Kuteh was a nurse and a committed Christian. Her role involved carrying out pre-operative assessments on patients, part of which required her to ask a simple question regarding their religious beliefs.
On numerous occasions she had initiated conversations with patients about religion, leading to a number of complaints against her. One patient complained that, prior to major cancer surgery, Mrs Kuteh advised that he would have a better chance of survival if he prayed to God. Another patient requested not to be assessed by Mrs Kuteh in the future.
Mrs Kuteh’s manager spoke with her and followed up with a letter, advising her that her conduct had been inappropriate. Mrs Kuteh assured her manager that she would not engage in such discussions again, unless the patient brought the topic up with her. Despite this, she continued to discuss religion with patients, and further complaints were made against her, including that she had given one patient a bible.
Mrs Kuteh’s employer consequently suspended her from her duties while an investigation was conducted, which led to a disciplinary procedure being instigated. Following her suspension, further complaints against her were brought to the employer’s attention.
All allegations against Mrs Kuteh were upheld, and it was noted that she was unlikely to change her behaviour in the future. She was dismissed with immediate effect on the basis that she had committed a fundamental breach of trust and confidence. Mrs Kuteh appealed her dismissal, but the decision was upheld. Mrs Kuteh then brought a claim for unfair dismissal in the Employment Tribunal.
As part of her claim, Mrs Kuteh made reference to Article 9 of the European Convention on Human Rights, which provides a right to freedom of thought, conscience and religion. However, Mrs Kuteh did not bring any claim of religious discrimination.
The Tribunal found that she had been dismissed for the potentially fair reason of her conduct and that the investigation leading up to the hearing had been entirely fair and reasonable. It also noted the distinction between Mrs Kuteh being dismissed for proselytising her beliefs, as opposed to being prevented from manifesting them. The Tribunal dismissed the claim, and an appeal to the Employment Appeal Tribunal by Mrs Kuteh led to them dismissing the claim on the grounds that it had no reasonable prospects of success.
The case was then appealed to the Court of Appeal, which upheld the previous decisions. The Court held that Mrs Kuteh had been informed that her behaviour was inappropriate, and had given assurances that it would not happen again, only to disobey these instructions and continue to engage in conversations about religion. This is clearly a situation of misconduct on the employee’s part. Her employer had carried out a fair procedure in disciplining and dismissing her, which meant that her dismissal had been fair.
This case brings the issue of religious expression in the workplace to the spotlight once again. As it was not pleaded the courts did not need to consider religious discrimination, but the findings demonstrate that an employer can fairly dismiss an employee whose conversations and behaviour are inappropriate in the context of their religious beliefs.
Provided that there is a potentially fair reason for the dismissal (in this case the misconduct of the employee in disobeying instructions from her manager,) it may be fair to dismiss the employee. This case highlights the importance of ensuring that the company’s disciplinary procedures are well documented and abided by, including carrying out an investigation, disciplinary hearing, and if necessary, an appeal hearing.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.