Unfair dismissal and proselytising


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The Court of Appeal has held in Kuteh v Dartford and Gravesham NHS Trust that it is not unfair to dismiss an employee for proselytising if the proselytising is improper.

The claimant was a nurse who worked in a pre-operative assessment role. During these assessments she often took the opportunity to talk to patients about religion. A few of the patients complained and the matron spoke to the claimant about the inappropriateness of her actions. Although she assured the matron that she would no longer initiate conversations with patients about religion she then continued to do so, saying prayers for patients and also asking a patient to sing a psalm with her. Following disciplinary proceedings the claimant was dismissed.

The tribunal and the Employment Appeal Tribunal (EAT) both found that the dismissal was fair, so the claimant appealed to the Court of Appeal, arguing that the tribunal had failed to distinguish between true evangelism and improper proselytism in considering the impact of the Article 9 right to manifest religion on the fairness of the dismissal. The Court dismissed the appeal, finding that the claimant had acted inappropriately by improperly proselytising to patients and by failing to follow a lawful management order. The disciplinary process had been carried out fairly and the employer's dismissal of the claimant was reasonable.

Take note: The claimant's claim in this case was limited to unfair dismissal. There was no claim for discrimination on grounds of religion. However, it is unlikely that this would have made a difference as in previous cases involving proselytising at work, where the employee has been instructed to stop (as the claimant was in this case), the employee has not been able to succeed in a claim for either direct or indirect religious discrimination.

This article is taken from HR Law – June 2019

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