Kuteh v Dartford And Gravesham NHS Trust

In an unfair-dismissal claim based on misconduct, fairness depends on whether the employer reasonably treated the misconduct as sufficient for dismissal under the Employment Rights Act 1996. The tribunal applies the band of reasonable responses and must not substitute its own view.

Article 9 protects manifestation of religion, including proselytism in principle, but does not protect improper proselytising or inappropriate promotion of belief. A targeted instruction preventing a healthcare worker from initiating religious discussions with vulnerable patients is not a blanket ban. Repeated disobedience and inappropriate conduct may justify dismissal where the procedure and sanction fall within the range of reasonable responses.

The claimant, a nurse, was dismissed for gross misconduct after initiating inappropriate religious conversations with patients and continuing to do so after a management instruction. The Employment Tribunal rejected her unfair-dismissal claim and concluded that the dismissal fell within the band of reasonable responses. The Employment Appeal Tribunal, on a Rule 3(10) hearing, dismissed her appeal as unarguable.

Permission to appeal to the Court of Appeal was granted on two grounds. The issues were whether the disciplinary allegations had been assessed under the correct interpretation of paragraph 20.7 of the NMC Code, and whether the claimant’s conduct was protected by Article 9 of the ECHR.

Lord Justice Singh gave the substantive judgment. Lord Justices Haddon-Cave and Gross agreed. The appeal was dismissed.

1. Unfair dismissal. Under sections 94 and 98 of the Employment Rights Act 1996, the employer had to show a potentially fair reason, here conduct. The fairness question was whether the employer acted reasonably in treating that reason as sufficient. The principles in British Home Stores v Burchell [1980] ICR 303 required consideration of the employer’s belief, its reasonable grounds and the reasonableness of its investigation. The tribunal also had to apply the band of reasonable responses, as explained in Orr v Milton Keynes Council [2011] EWCA Civ 62, without substituting its own decision.
2. The Employment Tribunal had found a fair investigation, fair disciplinary and appeal procedures, clear evidence of inappropriate conduct and a dismissal within the permissible range. The Employment Appeal Tribunal was therefore entitled to regard the appeal as having no reasonable prospect of success.
3. Article 9. The claim was one of unfair dismissal, not discrimination or a free-standing claim under the Human Rights Act 1998. Article 9 nevertheless informed the interpretation of domestic law. Reading Kokkinakis v Greece (1994) 17 EHRR 397 as a whole, proselytism can fall within Article 9(1), but improper proselytism is not protected. The distinction between manifestation of religious belief and inappropriate promotion of that belief, recognised in Chondol v Liverpool City Council UKEAT/0298/08/JOJ and followed in Wasteney v East London NHS Foundation Trust UKEAT 157/15, was correct.
4. The employer had not imposed a blanket ban on religious speech. It had prohibited the claimant from initiating religious discussions with patients and required compliance with a lawful management instruction. Continuing that conduct after giving an assurance to stop, including conduct plainly inappropriate in the clinical setting, entitled the Employment Tribunal to find that dismissal was fair.

• Court of Appeal (Civil Division) — In [2019] EWCA Civ 818, the appeal was dismissed.
• Employment Appeal Tribunal — Mr Justice Choudhury dismissed the claimant’s appeal under Rule 3(10) of the EAT Rules 1993.
• Employment Tribunal — Employment Judge Kurrein dismissed the claim for unfair dismissal.