Dismissal of nurse after “Monty Python skit” was fair
The dismissal of a nurse who failed to comply with an instruction to stop engaging in unwanted discussions about religion with patients has been…
In an important decision for any organisation with prohibitions on staff having inappropriate conversations about religion with service-users, patients or clients, the Court of Appeal has upheld as fair the dismissal of a nurse who failed to comply with a reasonable management instruction to stop engaging in unwanted discussions about religion with patients. The dismissal in this case followed a patient complaint which described his encounter with the nurse as being “like a Monty Python skit”. The Judgment, in Kuteh v Dartford and Gravesham NHS Trust, is reassuring for those of you who have such policies and who want to enforce them.
Ms Kuteh, a committed Christian, was employed by the NHS Trust as a Band 5 nurse. She carried out pre-operation assessments in an Intensive Treatment Unit with patients, who were accordingly likely to be worried and vulnerable. After a number of complaints from patients about unwanted religious discussions with the nurse, she was instructed by her manager that it was not appropriate to discuss religious views with patients and agreed not to do so. Shortly after, three further similar incidents occurred. In the most serious of them, the nurse sang a Psalm to a patient being treated for cancer, as part of an encounter which the patient described as “very bizarre” and “like a Monty Python skit”.
After an investigation, the nurse was dismissed, with the employer relying upon: the inappropriate religious discussions; the repeat of incidents and the lack of change in behaviour; and the breach of the Nursing and Midwifery Code. The code governs nurses conduct and says they must not express their personal beliefs (including political, religious or moral beliefs) in an inappropriate way.
The nurse claimed unfair dismissal and placed some emphasis on her human right to freedom of thought, conscience and religion. Her dismissal was found to be fair, the Employment Judge finding clear and ample evidence that the conduct had been inappropriate. The nurse had admitted to having had religious discussions with patients and accepted she had gone too far. He found dismissal was within the range of reasonable responses, particularly given these incidents had occurred shortly after the manager’s instruction and the nurse’s assurance that she would not repeat the behaviour. The Court of Appeal has confirmed that the Tribunal was able to reach that decision.
In its Judgment, the Court of Appeal particularly highlight that an important distinction is drawn between: an individual not being prevented from manifesting religious beliefs (which is protected by the Human Rights Act and the European Convention of Human Rights and includes true evangelism); and inappropriate or improper promotion of beliefs (which is not). This case was held to be one which fell into the latter category. Even having regard to the importance of the right to freedom of religion, the Court of Appeal found that it was plainly open to the Employment Tribunal to conclude that this dismissal was fair.
What does this mean for me?
A blanket ban on discussing religion in most work places will be discriminatory and a dismissal for breaching the ban is likely to be unfair. However, where rules which prohibit unwanted religious discussions are imposed by organisations with good reasons for doing so, enforcing those rules is likely to be okay and dismissal may be fair. This Judgment provides considerable reassurance to any of you relying upon rules which protect potentially vulnerable patients, service users etc. Care will always need to be taken to consider the facts in each case, but where the employee’s promotion of their religious beliefs is improper, this case confirms that the right to freedom of religion (and to manifest that religion) does not stop any dismissal from being fair. Fairness will be decided taking account of the usual factors, such as whether escalation through a warning, ideally with a commitment not to repeat the behaviour, would be more appropriate, the gravity of the offence, and why dismissal is considered to be the appropriate sanction.
Employees with strongly held religious beliefs may feel obligated to talk to others about those beliefs while they are working. This can create potential conflict. This Judgment broadly supports employers being able to apply policies which prohibit inappropriate or improper promotion of beliefs, particularly where there are vulnerable service users and/or clear professional responsibilities not to do so. It is also important to note that this individual did not claim religious discrimination and so that was not considered as part of this appeal (at least as a separate claim). The facts of this particular case seem to have been somewhat extreme and the Court of Appeal clearly thought the nurse involved over-stepped the mark, having been given a clear instruction and opportunity to correct the behaviour. Each case does however need to be considered on its own merits and if you find yourself faced with a situation where it is a tougher judgement call, please do talk to us when considering the appropriate approach.
If the content of this alert raise any issues for you, please liaise with your usual contact in the Weightmans employment pensions and immigration team or speak to Ben Daniel, firstname.lastname@example.org.