Kuteh v Dartford & Gravesham NHS Trust  EWCA Civ 818
Cyril Adjei successfully represented the respondent NHS Trust (‘the Trust’) in this appeal concerning a nurse who initiated religious conversations with patients in their pre-operative assessments and, on occasion, prompted a patient to complain that his encounter with him, during which she asked him to sing a psalm with her, was “very bizarre” and “like a Monty Python skit” and was dismissed for gross misconduct.
The Appellant, a committed Christian, as she was described, was responsible for carrying out six to twelve pre-operative assessments a day with patients about to undergo surgery in the near future. Her assessment form included a question as to whether the patient had a religion or religious belief, in which case it was to be noted. The Appellant accepted that she initiated conversations about religion with patients sometimes and, for example, queried why a patient did not believe in God if they said so in response to the simple assessment question.
A number of patient complaints were made about the Appellant’s conduct, which some patients found unwanted, inappropriate or offensive. The matron spoke to the Appellant about this on 11 April 2016 and elicited from her an assurance that she would not engage in the topic of religion again unless a patient asked her to. However, in breach of that instruction and contrary to the assurance given, the Appellant did just that. Further complaints were made resulting in an investigation, a disciplinary hearing and the Trust’s decision to dismiss her for a fundamental breach of the implied term of mutual trust and confidence constituted in: (a) repeated misconduct in breach of a reasonable management instruction; (b) inappropriate behaviour or conduct in the further unwanted discussions and (c) a breach of paragraph 20.7 of the Nursing and Midwifery Council’s Code (‘NMC Code’).
Saliently, the Appellant brought a claim for unfair dismissal and not any claim of unlawful discrimination. Within the Particulars of Claim filed with the ET1 was the assertion that the NMC Code must be interpreted in a way that was compatible with Article 9 of the European Convention on Human Rights (‘ECHR’).
Article 9 provides as follows (emphasis supplied):
The Employment Tribunal (‘ET’) dismissed the claim having found that the Trust had dismissed for a fair reason, had conducted a fair process and its decision lay within a reasonable band of responses. The ET referred to the decision of the Employment Appeal Tribunal (‘EAT’) in Chondol v Liverpool City Council UKEAT/0298/08/JOH in which a distinction was drawn between inappropriately proselytising and being prevented from manifesting a religious belief.
On appeal to the EAT, the Appellant contended that the ET had erred in failing to consider the correct interpretation of paragraph 20.7 of the NMC Code, particularly the distinction between appropriate and inappropriate expressions of belief. Choudhury P dismissed the appeal after a rule 3(10) hearing noting that the Appellant had disobeyed the management instruction given to her by the matron and that the ET had clearly found her conduct to be inappropriate on the facts as well as finding, in substance, that Article 9 had not been breached.
On further appeal to the Court of Appeal, the Appellant argued that:
The appeal failed.
Referring to Kokkinakis v Greece (1994) 17 EHRR 397, in the leading judgment of Singh LJ, the Court of Appeal held that whilst proselytising could fall within the scope of Article 9(1), where the proselytising was improper, interference with those rights would be justified under Article 9(2).
The ET and EAT were correct to rely upon the decisions in Chondol and in Wasteney v East London NHS Foundation Trust  ICR 643 (in which Ben Collins QC successfully represented the respondent NHS Trust) albeit that those cases concerned claims of discrimination and not of unfair dismissal.
Whilst not referred to in the Court of Appeal’s judgment, in express terms, the useful guidance from Wasteney is worth bearing in mind in this context. HHJ Eady QC held:
“If the case is one of direct discrimination then the focus on the reason why the less favourable treatment occurred should permit an ET to identify those cases where the treatment is not because of the manifestation of the religion or belief but because of the inappropriate manner of the manifestation (where what is “inappropriate” may be tested by reference to Article 9.2 and the case-law in that respect); see Chondol v Liverpool City Council  UKEAT/0298/08 and Grace v Places for Children  UKEAT/0217/13. Similarly, whilst the definition of harassment permits the looser test of “related to”, a clear sense of what the conduct did in fact relate to should permit the ET to reach a conclusion as to whether it is the manifestation of religion or belief that is in issue or whether it is in fact the complainant’s own inappropriate conduct (and that must be right, otherwise an employer’s attempt to discipline an employee for the harassment of a co-worker related to (e.g.) the co-worker’s religion or belief could itself be characterised as harassment related to that protected characteristic).”
The Court of Appeal concluded that, even taking into account the importance of the (qualified) right to freedom of religion, the Appellant’s conduct was inappropriate and in breach of an instruction she had agreed to comply with, and it was plainly open to the ET to conclude the dismissal was not unfair.
What then are the core points to be taken away from this case?
In a pluralistic and multi-cultural society in which persons of different faiths and of no faith at all are expected to be able to live and work, if not within an utopia of harmony, then, in a manner that at least respects the boundaries of those differences and acknowledges that one belief system does not trump another, this decision is to be welcomed.
While this case concerned the interplay of Article 9 and ERA 1996, in many cases of this sort it is likely that a claim of religious discrimination will be brought by the dismissed employee. Here the question of the comparator will be important and the way in which the complainant characterises his or her religious belief may be vital. For an example of the correct approach to comparators in another NHS case where an employee was dismissed for arguably proselytising or failing to follow an instruction to refrain from doing so see Dr David Drew v Walsall Healthcare NHS Trust UKEAT/0378/12/SM in which Eleena Misra acted for the successful NHS Trust at the EAT and ET below.
The hearing of Kuteh can be viewed here: https://www.youtube.com/watch?v=_ViGEs3mvd8
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