Kuteh v Dartford And Gravesham NHS Trust [2019] EWCA Civ 818 is a reminder that although s10 The Equality Act 2010 protects religion and belief, this doesn’t mean that an employee who defies their employers instructions and evangelises is not immune from dismissal.

The case involved Ms Kuteh, a practicing and committed Christian, who worked as a nurse. Specifically, her job was to make a pre-operative assessment of patients using a pro forma document; the form required   Ms Kuteh   to make a simple enquiry as to a patient’s religion and to note the response; importantly it did not open the door to further religious discussion. Patients started complaining that Ms Kuteh was engaging in both unwanted and uncomfortable conversations with patients regarding religion. Her employer intervened and instructed her to stop. Despite giving an assurance to comply, this instruction was ignored and, following another two incidents, she was summarily dismissed.

She was unsuccessful in the Employment Tribunal and also the Employment Appeal Tribunal so the case came before the Court of Appeal who were keen to stress that “it is important that cases such as this should not become over-elaborate or excessively complicated” as it was essentially a case of unfair dismissal.

Para 68 of the Judgement made clear:

  1. The Claimant accepted that on at least some occasions she initiated conversations with patients about religion.
  2. She then gave assurance to a manager that she would not initiate such discussions.
  3. The assurance given was not complied with.
  4. Her employer conducted a fair procedure when she was dismissed.
  5. The decision to dismiss Ms Kuteh fell within the band of reasonable responses open to her employer.

Counsel for Ms Kuteh asserted “there is, simply, no authority for Ms Kuteh’s employers to have a blanket ban on religious speech. …”. The Court of Appeal took the view that:

“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”.

There was no claim made for discrimination on grounds of religion in this case though it is likely that, even if there had been, the outcome would have been the same.

This is a reminder to employers that polices must make clear what behaviour is considers inappropriate, the advantage being that related dismissals are likely to be lawful.

Talem Law

31st May 2019

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