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Dismissal of Employee for Proselytising in the Workplace was Fair

The Court of Appeal has upheld the decision that it was fair for an employer to dismiss a nurse for improperly proselytising to patients and for failing to follow a lawful management instruction.

This case highlights the importance of ensuring that the decision to dismiss is reasonable in the circumstances and that a fair disciplinary process is followed.

The Facts of the Case

In Kuteh v Dartford and Gravesham NHS Trust  the employee was a nurse working in a pre-operative assessment role. During assessments, she often took the opportunity to talk to patients about religion which led to some complaints.

The employee was spoken to about this by her manager and she agreed she would no longer initiate conversations about religion with patients. Shortly after this, further complaints were received about the employee’s conduct including giving a patient a Bible and asking a patient to sing a Psalm.

The employee was suspended, the matters investigated, and the employee was taken through a disciplinary process. The outcome of this was dismissal for gross misconduct for failing to follow a reasonable management instruction, inappropriate conduct that involved unwanted discussions about religion and breach of the Nursing and Midwifery Code in relation to sharing political, religious or moral beliefs in an inappropriate way.

The employee complained to the employment tribunal that her dismissal was unfair, and the case went all the way to the Court of Appeal. The Court disagreed with the employee and found that even having regard to the importance of the right to freedom of religion, it was plainly open to the employment tribunal to conclude that this dismissal had not been unfair. The decision to dismiss on the facts of the case was within the band of reasonable responses and a fair process had been followed.

Advice

As this case shows it’s possible to address difficult issues such as these but it’s necessary to do so appropriately in the circumstances. Whilst the employee in this case didn’t try to argue she had been discriminated against, employers will need to ensure that they don’t inadvertently do so if they are trying to tackle similar issues.

When it comes to taking disciplinary action generally here’s a few points to remember:

  • Give employees a reasonable amount of notice of any disciplinary hearing, we usually recommend giving five calendar days’ notice to allow the employee sufficient time to prepare
  • Allow the employee to be accompanied at the disciplinary hearing by a trade union representative or work colleague if they wish to be
  • Allow the employee to put forward their defence at the hearing
  • Ask any questions you need to ask that are relevant to the matter at hand
  • Don’t give the employee the outcome at the disciplinary hearing. You should adjourn to consider what has been said and where necessary to conduct any further investigations before an outcome is given.

If you wish to take disciplinary or other action in relation to an employee, it’s important to seek advice on the facts of your case before doing so.

If you have an employment law matter you would like assistance with, please do not hesitate to contact Kingfisher Professional Services Ltd as we are happy to help.