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Unfair Dismissal

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Is it unfair to dismiss an employee for proselytising?

Not if the proselytising is improper, held the Court of Appeal in Kuteh v Dartford and Gravesham NHS Trust.

The Claimant was a nurse, working in a pre-operative assessment role. During assessments, she often took the opportunity to talk to patients about religion. Complaints were made about this by patients, leading the matron to speak to the Claimant about the inappropriateness of her actions. She assured the matron she would no longer initiate conversations with patients about religion. She then breached that assurance, including by saying prayers for patients and asking a patient to sing a psalm with her. Disciplinary proceedings were brought and the Claimant was dismissed.

The employment tribunal found the dismissal fair and the EAT refused permission to appeal. On appeal against that refusal, the Claimant complained that the tribunal had failed to distinguish between true evangelism and improper proselytism in considering the impact of the right under Article 9 of the European Convention of Human Rights to manifest religion on the fairness of the dismissal.

The Court of Appeal dismissed the appeal. The Court considered that the Claimant had acted inappropriately both by improperly proselytising to patients and by failing to follow a lawful management order. Given that the disciplinary process was fairly carried out and the conclusion reached was reasonable, the appeal was dismissed and the fairness of the dismissal was upheld.

Thanks to Jason Braier of 42 Bedford Row for preparing this case summary.