A nurse in Kent has lost a second appeal against an Employment Tribunal decision that found she was fairly dismissed for ‘preaching’ to patients.
The Court of Appeal case, Kuteh v Dartford and Gravesham NHS Trust, considered the balance between the importance of the right to freedom of religion and the individual’s right to be protected from inappropriate or improper promotion of beliefs. In this case the complainants were hospital patients attended to by Ms Kuteh in the Intensive Treatment Unit of Darent Valley Hospital in Dartford. Ms Kuteh had 15 years’ nursing experience and prior to her dismissal she was employed in a pre-operative assessment role. Understandably, the nature of her role meant that the patients she attended were at a particularly vulnerable moment in their lives.
The Dartford and Gravesham NHS Trust initiated an investigation into Ms Kuteh on 13th June 2016 after multiple complaints were made against her. Ms Kuteh was suspended from her duties while the investigation was carried out. She had already previously been verbally warned by her manager not to engage in unwanted, religious conversations with patients and was also on a current final written warning for a medication error carried out the previous year.
The complaints raised by patients included one individual who was scheduled to undergo surgery for bowel cancer, who was informed by Ms Kuteh that he would have a better chance of survival if he were to pray. Another patient receiving canter treatment complained that Ms Kuteh had clenched his hand and requested he sing Psalm 23, while a further patient alleged that Ms Kuteh spent more time talking about religion than completing a pre-surgery questionnaire.
Ms Kuteh was a committed Christian and maintained that her discussions were well-intended, confirming that she would discuss her faith with patients ‘if it seemed an appropriate and helpful thing to say, in the light of a particular patient’s demeanour and their apparent willingness to discuss religion’.
Whilst Ms Kuteh’s actions may have been well-intended, the investigation found that she was at fault after she continued to repetitively engage in inappropriate religious discussions with patients. The lack of change in her behaviour after being warned about the same was used as evidence of her misconduct.
She was subsequently dismissed for ‘a failure to carry out a reasonable management instruction’. Her original final written warning was still in effect at the time of her dismissal. The reasonable management instruction in this case was the request to stop engaging in unwanted discussions about religion with patients and the further complaints raised indicated that she had failed to do this.
In addition, the Trust also relied on the fact that as an employee, Ms Kuteh’s behaviour was governed under the Nursing and Midwifery Code, which specifically prohibits employees from expressing their personal beliefs (including political, religious or moral beliefs) in an inappropriate way.
The Supreme Court has upheld the original Employment Tribunal decision, confirming that the decision by the Trust to dismiss was within the range of reasonable responses and therefore that both the reason for dismissal and the process used to dismiss were fair.
The Judgment highlights that employers should be able to put in place policies which restrict inappropriate or improper promotion of beliefs, but focusses primarily on situations where there may be vulnerable service users or patients (ie in this situation there was a good reason why such a policy was in place).
A blanket ban on the discussion of religion or belief in the workplace will be discriminatory, however this case shows that an internal policy which seeks to limit the same may not be, provided the organisation has good reason for doing so. The implementation of any such policy would have to be considered on a case by case basis.
The full Judgment can be found here.