Kuteh V Dartford And Gravesham NHS Trust

The case of Kuteh v Dartford And Gravesham NHS Trust relates to an incident of an employee being dismissed for proselytism (the attempt of any religion or religious individuals to convert people to their beliefs).

Background

Mrs Kuteh worked in the Intensive Therapy Unit since 2007, as a band 5 Junior Sister.

She was, therefore, involved in conducting patient assessments before they went in for operations. 

To conduct these assessments, she used a pro-forma document, which meant she had to make a simple enquiry regarding the religion the patient followed and note down their response. 

In spring of 2016, patients had complained that Mrs Kuteh had started unwanted religious conversations with them. 

After a conversation with the Matron whereby these concerns were voiced, Mrs Kuteh assured the Matron religion would not be a topic she would discuss with patients again.

However, in May, two further matters of concern were brought up. This led to Mrs Kuteh being suspended in 2016.

Three allegations were being made against her during this time. This included the following:

  • Breach of para 20.7 of the Nursing and Midwifery Council Code, which states personal beliefs cannot be expressed in a manner deemed inappropriate.
  • Inappropriate conduct or behaviour that involved unwanted discussions about religion, causing verbal patient complaints.
  • Repeated misconducted, meaning management instruction was not followed. 

Employment Tribunal & EAT

Mrs Kuteh took Dartford And Gravesham NHS Trust to an Employment Tribunal for unfair dismissal.

She was hoping to rely on the protections under article 9 of the European Convention of Human Rights (right to freedom of thought, conscience and religion). 

The Employment Tribunal found that her dismissal was fair.

Then the Employment Appeals Tribunal refused permission for Mrs Kuteh to appeal.

Court Of Appeal

Mrs Kuteh then appealed the EAT refusal and went to the Court of Appeal, which dismissed her appeal on the grounds that the article 9 protections didn’t extend to improper proselytism.

The court emphasised that it was a claim for unfair dismissal, and that 'important cases such as this should not become over-elaborate or excessively complicated’.

The justification was:

  • Ms Kuteh accepted that on at least some occasions, she initiated conversations with patients about religion;
  • She had assured her employer that she would stop doing so;
  • Despite that assurance, given in response to a lawful management instruction, she continued to do so;
  • Her employer conducted a fair procedure, by way of investigation, at the disciplinary hearing and at the subsequent appeal;
  • The decision to dismiss Ms Kuteh for misconduct was one which the tribunal concluded fell within the band of reasonable responses open to the employer.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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