The UK Court of Appeal has upheld the dismissal for a nurse for improper proselytising when assisting patients fill out a pre-operative assessment form.
The claimant had been employed as a nurse by the NHS since 2007. Following an error in dispensing medication and on foot of final written warning, she had been moved to a pre-operative assessment role. The claimant took patients through a pre-operative assessment form as part of this role, which included a section on the patient’s religious beliefs. A number of complaints were made regarding the claimant’s religious preaching, and both oral and written warnings were given stating that her proselytising was not acceptable. The claimant was ultimately dismissed for repeated and inappropriate misconduct, including breach of the Nursing and Midwifery Council code which prohibits nurses from expressing their own personal views in an inappropriate way.
A claim for unfair dismissal was brought before the Employment Tribunal, with passing reference to Article 9 of the European Convention on Human Rights which allows an individual the freedom to manifest their religion. The Employment Tribunal found against the claimant in stating that the pre-operative form did not require an in depth discussion of a patient’s religion and found the claimant’s engagement with patients to be inappropriate, particularly as she had previously received warnings regarding her behaviour.
On appeal, the Court of Appeal emphasised that the claim was that of unfair dismissal and had not been framed as a claim for religious discrimination. The Court agreed with the Employment Tribunal that, given the extent of oral and written warning for inappropriate behaviour, the dismissal had not been unfair.
In looking at Article 9, the Court examined the European Court of Human Rights decision in Kokkinakis v Greece which distinguished between evangelism and improper proselytising. It stressed that exerting improper pressure on people in distress or in need was not seen to be compatible with respect for freedom of religion of others. The Court went on to interpret Kokkinakis as meaning that even if improper proselytising does fall within the scope of Article 9, interference with these rights can be justified as being proportionate to a legitimate aim.
Click here for the judgement in Kuteh v Dartford and Gravesham NHS Trust.