Proselytising nurse’s dismissal upheld by the Court of Appeal

30 May 2019 by

Kuteh v Dartford and Gravesham NHS Trust [2019] EWCA Civ 818

The Court of Appeal unanimously ruled that a nurse’s dismissal for improper proselytising was not unfair and that the hospital trust’s decision was not in contravention of the claimant’s rights as guaranteed by Article 9 of the European Convention on Human Rights.

The claimant, a committed Christian, had been employed as a band 5 nurse by the Trust since 2007. Following a medication error, she had been given a final written warning and transferred to work in a pre-operative assessment role. In this role the claimant was required to go through a pre-operative form with the patients. The form required the claimant to make a simple inquiry into the patient’s religious beliefs; importantly “it did not open the door to further religious discussion.” [7]

In March and April 2016 several complaints were made by patients about the over-zealous religious preaching of the claimant, with one patient being told shortly before major bowel surgery that he had a better chance of survival if he prayed to God.

Following these complaints the matron gave the claimant both oral and written warning that her proselytising was not acceptable. The claimant confirmed that she would not engage in religious discussion unless prompted by the patient.

Two further complaints were made in May and the claimant was suspended. Whilst suspended a further complaint was made alleging that the claimant had forced a patient to sing Psalm 23 out loud in what he described as a “very bizarre” encounter that was “like a Monty Python skit.”

The trust investigated the claims and after a disciplinary hearing the claimant was dismissed for repeated and inappropriate misconduct, including a breach of paragraph 20.7 of the Nursing and Midwifery Council (NMC) code which prohibits nurses from expressing their own personal views in an inappropriate way.

Following an unsuccessful written appeal to the trust, the claimant commenced proceedings in the Employment Tribunal (ET), alleging that she had been unfairly dismissed. She also made passing reference to her right to manifest her religion, as guaranteed by Article 9 of the ECHR.

The ET concluded that the pre-operative form did not require an in-depth discussion of the patient’s religion and therefore the claimant’s religious engagement with patients was inappropriate, particularly as she had received a clear warning about her behaviour. In these circumstances, it was reasonable for the trust to dismiss the claimant.

With regards to Article 9, the ET differentiated between improper proselytising and preventing an individual from expressing their religious beliefs. The ET ruled that it was only the former that the Trust had prevented the claimant from undertaking and therefore Article 9 was not applicable to the present case, citing Chondol v Liverpool City Council UKEAT/0298/08/JOJ as authority for this distinction.

The Employment Appeal Tribunal dismissed the claimant’s appeal.

Grounds of Appeal

Permission to appeal to the Court of Appeal was granted on two grounds only:

  1. The EAT failed to consider the correct interpretation of paragraph 20.7 of the NMC code and the distinction between appropriate and inappropriate expressions of religious beliefs.
  2. The EAT erred in failing to acknowledge that Article 9 was applicable and to consider the fact-sensitive distinction between true evangelism and improper proselytism, and to carry out a proper analysis under Article 9(2).

Judgment

Lord Justice Singh, who gave the lead judgment, stressed that throughout this appeal the case had been framed as a claim for unfair dismissal and was not a claim for religious discrimination, nor a claim for a direct breach of the Human Rights Act 1998.

First, the Judge unsurprisingly agreed with the reasoning of the ET that the dismissal was not unfair in light of her clearly inappropriate conduct despite both an oral and a written warning.

The more notable element of this case is Singh LJ’s analysis of Article 9 and its applicability to the present case [47]-[64].

Article 9 states as follows:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.


2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Singh LJ began by examining the judgment of the European Court of Human Rights in Kokkinakis v Greece (1994) 17 EHRR 397 and quoted in full several sections of the judgment, most notably paragraph 48 which states:

First of all, a distinction has to be made between bearing Christian witness and improper proselytism. The former corresponds to true evangelism, which a report drawn up in 1956 under the auspices of the World Council of Churches describes as an essential mission and a responsibility of every Christian and every Church. The latter represents a corruption or deformation of it. It may, according to the same report, take the form of activities offering material or social advantages with a view to gaining new members for a Church or exerting improper pressure on people in distress or in need; it may even entail the use of violence or brainwashing; more generally, it is not compatible with respect for freedom of thought, conscience and religion of others.

Scrutiny of section 4 of Act 1363/1938 shows that the relevant criteria adopted by the Greek legislature are reconcilable with the foregoing if and in so far as they are designed only to punish improper proselytism, which the Court does not have to define in the abstract in the present case.

Singh LJ stated that whilst one possible reading of this judgment is that improper proselytising falls outside the scope of Article 9, he concluded that the more sensible reading is that even if improper proselytising does fall within the scope of Article 9(1), the key point is that interference with those rights will be justified as being proportionate to a legitimate aim under Article 9(2). [52]

Conclusion

The key takeaway from this case is that for the purposes of Article 9 there is a material difference between improper proselytism and religious expression. Even if the former does fall within the scope of Article 9(1) its interference will be justified under Article 9(2). Much like the ECtHR in Kokkinakis, the Court of Appeal in the present case decided not to set out a clear definition of what constitutes improper proselytism. Therefore, quite sensibly, it will continue to be a highly fact-sensitive assessment that must be made by each individual court.

Finally, as Singh LJ was at pains to point out throughout, this was a case that was predominantly focused on a simple unfair dismissal allegation. As such, the engagement with the issues raised by Article 9 was framed by an underlying acknowledgement that the ET has limited jurisdiction to consider human rights arguments. Moreover, this case was unusual because the claimant was not actually bringing a claim for religious discrimination. Nonetheless, this ruling is likely to provide relief to employers who are currently dealing with an over-zealous and evangelical employee.

Thomas Beasley is presently working as a paralegal and will commence the BPTC in September 2019.

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