Patient forms

Although European law recognises the right to freedom of religion, the Court of Appeal held in Kuteh v Dartford and Gravesham NHS Trust that it was not unfair to dismiss a nurse for proselytising when filling in a pre-operative form about a patient’s religion. This was not only inappropriate, but it was also contrary to a reasonable management instruction not to engage with patients unless asked by them to do so.

Basic facts

Ms Kuteh, a nurse, worked in a pre-operative assessment role which involved filling in a pro forma document with patients about to undergo surgery. One question on the form asked about the patient’s religion which she was then required to note down.

A number of patients complained that Ms Kuteh was proselytising when filling in this part of the form. For instance she told one man, who was about to undergo major bowel surgery for cancer, that if he prayed to God he would have a better chance of survival. 

After a discussion with the Matron, Ms Kuteh agreed not to engage on the topic of religion unless asked to do so by a patient. Further complaints followed, however, including an allegation that she had given a patient a Bible. Another patient, whom she had asked to sing a hymn with her described the encounter as “very bizarre" and "like a Monty Python skit". 

Following an investigation and a disciplinary hearing, she was dismissed for misconduct and breach of the Nursing and Midwifery Council (NMC) Code of Conduct. Her appeal against dismissal was unsuccessful. She brought a claim of unfair dismissal, arguing that the NMC code of conduct had to be read in conjunction with Article 9 (right to freedom of religion) of the European Convention on Human Rights.

Tribunal and EAT decisions

Dismissing her claim, the tribunal held that she had been dismissed for the potentially fair reason of her conduct. Given the clear evidence of inappropriate conduct, dismissal was within the band of reasonable responses. As she had been engaged in proselytising beliefs inappropriately, Article 9 was not relevant.

The EAT agreed, holding that the tribunal had found that the employer had a genuine belief that misconduct occurred, there were reasonable grounds for that belief and there had been a reasonable investigation.

Decision by Court of Appeal

Although the Court accepted that proselytism could fall within the rights protected by Article 9, it held that improper proselytism did not. In this case, Ms Kuteh was initiating inappropriate discussions about religion and had disobeyed a lawful order given to her by management.

Indeed, she herself accepted that on more than one occasion she had initiated conversations with patients about religion. Despite being told to stop doing so, she continued to disobey the instruction. This included the incident described by the patient as “like a Monty Python skit” which was clearly inappropriate.

As the employer had conducted a fair procedure in terms of the investigation they carried out, the disciplinary hearing and subsequent appeal, the decision to dismiss her for misconduct was one which the tribunal concluded fell within the band of reasonable responses open to the employer in this case.

Even given the importance of the right to freedom of religion, it was plainly open to the tribunal to conclude that this dismissal had not been unfair. Similarly, the EAT was correct to regard the appeal as having no reasonable prospect of success. It therefore also dismissed her appeal.