Kuteh v Dartford And Gravesham NHS Trust

The Court of Appeal dismissed the claimant's appeal against the Employment Appeal Tribunal's refusal to allow an appeal from the Employment Tribunal's decision that the claimant had been fairly dismissed for gross misconduct. Key legal principles applied were the unfair dismissal framework under sections 94 and 98 of the Employment Rights Act 1996 (including the Burchell test of employer belief, reasonable grounds and reasonable investigation) and the distinction, in Article 9 ECHR jurisprudence, between protected manifestation of belief and improper proselytism.

The court upheld the Employment Tribunal's findings that the claimant, a nurse, had been given a clear and lawful management instruction not to initiate religious discussions with patients, that she admitted on some occasions to initiating such discussions and that she continued to do so after the instruction. The disciplinary process and investigation were held to be fair and the sanction of dismissal fell within the band of reasonable responses. The court rejected the contention that the NMC Code (para. 20.7) required a different analytical approach and held that Article 9 did not protect improper proselytism in these circumstances; any interference was justified under Article 9(2).

Background and parties: The claimant, a nurse employed from 2007 by the respondent NHS Trust, worked in pre-operative assessment. The respondent dismissed her for gross misconduct after repeated complaints that she initiated religious discussions with vulnerable and anxious patients and, on one occasion, gave a patient a Bible and engaged in an intense prayer.

Procedural posture: The claimant brought an unfair dismissal claim to the Employment Tribunal which dismissed it (decision sent 7 April 2017). The claimant appealed to the Employment Appeal Tribunal which, following a Rule 3(10) hearing, dismissed the appeal (Choudhury J, 16 February 2018). Permission to appeal to the Court of Appeal was granted by Bean LJ on 14 August 2018 on two grounds limited to the interpretation of para. 20.7 of the NMC Code and the applicability of Article 9 ECHR. This Court heard the appeal and dismissed it.

Nature of the claim and issues: The claim was for unfair dismissal. The principal issues before the Court were: (i) whether the Employment Tribunal had erred in its interpretation of paragraph 20.7 of the Nursing and Midwifery Council Code and in failing to distinguish appropriate from inappropriate expressions of religious belief in a clinical setting; and (ii) whether Article 9 ECHR was engaged so as to require a fact-sensitive analysis distinguishing true evangelism from improper proselytism and, if engaged, whether any interference was justified under Article 9(2).

Court's reasoning and findings: The Court applied the conventional unfair dismissal test (sections 94 and 98 ERA and the Burchell principles): it upheld the ET’s findings that the respondent had a genuine belief that misconduct occurred, had reasonable grounds for that belief and had carried out a reasonable investigation. The claimant had been explicitly instructed not to initiate religious discussions and admitted that she continued to do so. The Court accepted that the NMC Code did not require a different investigatory approach and that the questioned conduct amounted to inappropriate proselytism rather than protected manifestation of belief. The Court relied on Article 9 jurisprudence (including Kokkinakis) and domestic authorities (including Chondol and Wasteney) to hold that improper proselytism is not protected, or is a justifiable restriction under Article 9(2). The dismissal therefore fell within the band of reasonable responses and the appeal had no reasonable prospect of success.

Appeal dismissed. The Court held that the Employment Tribunal and EAT were entitled to find that (i) the claimant had initiated inappropriate religious discussions with patients despite a clear management instruction not to do so, (ii) the respondent carried out a fair investigation and disciplinary process, and (iii) dismissal for gross misconduct was within the band of reasonable responses. The court also held that the distinction between protected manifestation of belief and improper proselytism (Article 9 jurisprudence) supported the respondent's approach and that any interference with Article 9 was justifiable under Article 9(2).

Employment Tribunal dismissed the unfair dismissal claim (decision sent 7 April 2017). The claimant appealed to the Employment Appeal Tribunal; Choudhury J dismissed the appeal after a Rule 3(10) hearing on 16 February 2018. Permission to appeal to the Court of Appeal was granted by Bean LJ on 14 August 2018 on two grounds. The Court of Appeal heard the appeal on 28 March 2019 and dismissed it by judgment handed down 14 May 2019 ([2019] EWCA Civ 818).