Kuteh v Dartford and Gravesham NHS Trust [2019] EWCA Civ 818

Facts

Mrs Kuteh was a Christian who worked as a nurse for an NHS Trust. She assessed patients before they underwent surgery, which included asking them about their religion. After several patients complained that she had started unwanted religious discussions with them, Mrs Kuteh assured the matron that she would not do so again unless a patient asked her to. Complaints were then submitted by three more patients. One complained that she had given them a Bible and said she would pray for them; the second alleged that Mrs Kuteh had preached at her; and the third stated that Mrs Kuteh had told him the only way he could get to the Lord was through Jesus, had said an intense prayer and had asked him to sing a psalm with her. Mrs Kuteh was suspended and was dismissed for gross misconduct following an investigation and disciplinary hearing. She brought a claim for unfair dismissal, and the employment tribunal (ET) held that her dismissal had not been unfair. The Employment Appeal Tribunal (EAT) refused permission to appeal and Mrs Kuteh appealed to the Court of Appeal.

Decision

The Court of Appeal dismissed her appeal. Mrs Kuteh had disobeyed management instructions, the Trust had carried out a fair investigation and disciplinary procedure, and its decision to dismiss fell within the band of reasonable responses open to the Trust. It was open to the ET to find that dismissal had not been unfair and the EAT had been right to conclude that the appeal had no reasonable prospect of success.

Comment

Mrs Kuteh did not bring a claim for religious discrimination but it is unlikely that it would have succeeded had she done so. Case law is clear that an employee will not succeed in a claim for religious discrimination where they ignore an instruction to stop proselytising during their employment. There is a difference between the manifestation of a religious belief and the inappropriate promotion of that belief.