There is often a fine line between discussing religion in the workplace, and straying into conversations which can cause others offence or discomfort. That matter was recently considered by the Court of Appeal in the case of Kuteh v Dartford and Gravesham NHS Trust [2019 EWCA Civ 818].
Ms Kuteh was a registered nurse working in the Intensive Therapy Unit (ITU). She was responsible for carrying out assessments of patients who were due to undergo surgery. The assessments were carried out using a pro forma form, which included a question about the patient’s religion. Ms Kuteh was required to make a simple enquiry of the patient, and then note down their response.
However, Ms Kuteh was a committed Christian, and a number of patients raised complaints about Ms Kuteh talking about or preaching, religion to them. One patient who was about to undergo major surgery for bowel cancer claimed that he had been told by Ms Kuteh that if he prayed to God, he would have a better chance of survival. As a result, the Matron had a conversation with Ms Kuteh about these complaints.
Ms Kuteh acknowledged that she would sometimes bring religion up in conversation with patients if she considered that it was appropriate to do so. The Matron made clear that a number of patients had been offended by these conversations, that it was not appropriate to discuss religious views with them, and that Ms Kuteh should not engage with patients on the topic of religion unless they asked her to. Ms Kuteh agreed.
In the weeks following this meeting, further complaints were made about Ms Kuteh by patients; one claimed they had been given a Bible and been told that Ms Kuteh would pray for them. Another claimed that he had answered the question about religion with the response ‘open-minded’ but that Ms Kuteh had gripped his hand tightly, said a prayer for him and had encouraged him to sing a Psalm. He described the encounter as ‘very bizarre.’ Ms Kuteh was therefore suspended, and an investigation commenced.
Ms Kuteh accepted during the investigation and subsequent disciplinary process that she did sometimes have conversations about religion with patients, but that she did not always initiate them. She admitted that she had not followed a reasonable management instruction from the Matron and had given a patient a Bible.
Ms Kuteh was therefore dismissed for gross misconduct in that she had demonstrated inappropriate conduct and had failed to follow a reasonable management instruction. Her internal appeal was unsuccessful, and she, therefore, brought a claim for unfair dismissal in the Employment Tribunal. Both the Tribunal and the Employment Appeal Tribunal rejected her complaints, on the basis that the Trust had sufficient evidence upon which to conclude that she had committed gross misconduct and that the decision to dismiss was fair.
Ms Kuteh appealed to the Court of Appeal. She argued that her rights under Article 9 of the European Convention of Human Rights, which protects ‘freedom of thought, conscience and religion’ had been breached in that Ms Kuteh had been prevented from manifesting her religion in the workplace by ‘banning’ her from religious speech. However, the Court of Appeal rejected that argument as ‘wrong’ and differentiated between a ban on religious speech and an instruction not to initiate discussions with patients in circumstances where complaints had been made. Such an instruction was clearly lawful, and therefore in breaching it, Ms
Kuteh was guilty of gross misconduct such that it was reasonable for the Trust to dismiss her. Whilst on the facts of this case, the decision was, in the end, a fairly straightforward one, this case is a clear reminder of the perils of taking discussions about religion — which may be a healthy part of interactions between colleagues — to the point where offence might be caused. Individuals need to exercise caution in this area and when discussing such matters, ensure that they are not expressing themselves in a way which might cause discomfort or unhappiness.
Safia Tharoo
Barrister 40 Bedford Row London.
